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Title: The Geneva Protocol
Author: Miller, David Hunter, 1875-1961
Language: English
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The Geneva Protocol
by
DAVID HUNTER MILLER
New York
THE MACMILLAN COMPANY
1925
All Rights Reserved
PRINTED IN THE UNITED STATES OF AMERICA.
COPYRIGHT, 1925,
By THE MACMILLAN COMPANY.
Set up and printed. Published March, 1925.
{v}
FOREWORD
The sources and history of the Protocol of Geneva of course go far back
of its date, October 2, 1924. I have not attempted to trace them
except in so far as they have a direct bearing on my legal study of the
Document itself.
The form of the Protocol of Geneva is certainly not yet finally
written; consideration of its legal aspects is perhaps therefore all
the more desirable at this time.
The Protocol of Geneva is one chapter in the history of the League of
Nations, the history of international relations of our time.
D. H. M.
New York City, December, 1924.
{vii}
CONTENTS.
CHAPTER
I. THE PROTOCOL OF GENEVA .................................... 1
II. POINTS OF APPROACH ........................................ 3
III. THE COMING INTO FORCE OF THE PROTOCOL ..................... 5
IV. PARTIES TO THE PROTOCOL ................................... 10
V. RELATIONS INTER SE OF THE SIGNATORIES TO THE PROTOCOL ..... 13
VI. INTERNATIONAL DISPUTES .................................... 18
VII. THE STATUS QUO ............................................ 28
VIII. DOMESTIC QUESTIONS ........................................ 46
IX. COVENANTS AGAINST WAR ..................................... 50
X. AGGRESSION ................................................ 54
XI. THE JAPANESE AMENDMENT .................................... 64
XII. SANCTIONS ................................................. 72
XIII. SEPARATE DEFENSIVE AGREEMENTS ............................. 82
XIV. THE PROTOCOL AND ARTICLE TEN OF THE COVENANT .............. 84
XV. THE PROTOCOL AS TO NON-SIGNATORIES ........................ 86
XVI. THE DISARMAMENT CONFERENCE ................................ 87
XVII. DEMILITARIZED ZONES ....................................... 101
XVIII. SECURITY AND THE PROTOCOL ................................. 103
XIX. INTERPRETATION OF THE PROTOCOL ............................ 104
XX. THE "AMENDED" COVENANT .................................... 106
{viii}
ANNEXES.
A. THE COVENANT OF THE LEAGUE OF NATIONS .......................... 117
B. THE PROTOCOL OF GENEVA ......................................... 132
C. THE REPORT TO THE FIFTH ASSEMBLY ............................... 156
D. RESOLUTIONS .................................................... 210
E. REPORT OF THE BRITISH DELEGATES ................................ 217
F. THE AMERICAN PLAN .............................................. 263
G. THE "AMENDED" COVENANT ......................................... 271
{1}
The Geneva Protocol
CHAPTER I.
THE PROTOCOL OF GENEVA.
The Covenant of the League of Nations[1] lays down the principle that
national armaments should be reduced to the lowest point consistent
with national safety and the enforcement by common action of
international obligations.
Thus, in the Covenant, the problem of disarmament[2] and the problem of
security are viewed as correlative problems. Their study has gone on
in the League of Nations since its organization. During this same
period there has been widespread and increasing public interest in the
matter.
The theory of the Treaties of Peace was that the disarmament of Germany
and her allies was preliminary to a general reduction of armaments the
world over.[3] Except as the result of the Washington Conference, and
by that to only a very limited extent, there has been almost no
reduction or limitation of armaments by {2} international agreement
since the war.[4] Such lessening of armaments as has taken place has
been by voluntary national action.
The study of these questions during the last few years has brought
about a much clearer understanding of them, both in the minds of
statesmen and generally; and the various proposals that have been made
have been the subject of detailed and elaborate criticism from all
sides.
The latest of these proposals is the paper which is called The Protocol
of Geneva.[5] The Protocol of Geneva is, however, much more than a
proposal. It has the active support of a considerable number of
Governments.[6] It was unanimously recommended for acceptance by the
Fifth Assembly of the League of Nations. It deserves the serious
attention of all thoughtful minds.
The object of the Protocol of Geneva cannot be better stated than in
the words of its authors:[7]
"to facilitate the reduction and limitation of
armaments provided for in Article 8 of the Covenant of the
League of Nations by guaranteeing the security of States
through the development of methods for the pacific
settlement of all international disputes and the effective
condemnation of aggressive war."
While this Protocol is, and doubtless always will be, called "The
Protocol of Geneva," its official name is "Protocol for the Pacific
Settlement of International Disputes."[8]
[1] Article 8. The text of the Covenant is Annex A, p. 117.
[2] Those who criticize the use of the word "disarmament" as meaning a
reduction or limitation of armaments, should consult the dictionaries.
The Standard Dictionary gives the following definition:
"The act of disarming; especially, the reduction of a military or
naval establishment to a peace footing."
The Century Dictionary gives this:
"The act of disarming; the reduction of military and naval forces
from a war to a peace footing; as 'a general disarmament is much
to be desired.'"
The Century Dictionary also gives the following quotation as an
instance from Lowe's Life of Bismarck:
"He (Napoleon) in a fit of irresolution broached in Berlin the
question of mutual disarmament."
[3] See, for example, the preamble to the Military, Naval and Air
Clauses of the Treaty of Versailles: "In order to render possible the
initiation of a general limitation of the armaments of all nations,
Germany undertakes strictly to observe the military, naval and air
clauses which follow."
[4] The Treaty of Lausanne (A. J. I. L., Vol. XVIII, Supp., pp. 58, 64)
with its provisions for demilitarized zones, etc., and the Convention
for the Limitation of Armaments in Central America of February 7, 1923
(A. J. I. L., Vol. XVII, Supp. 1923, pp. 114, _et seq._), are to be
noted in this regard.
[5] For the text in French and English, see Annex B, p. 132.
[6] Sixteen States have signed the Protocol and it has been ratified by
Czechoslovakia.
[7] See Report to the Fifth Assembly, Annex C, p. 156, at p. 164. This
Report of MM. Benes and Politis is a notable document, worthy of the
ability and learning of the two Rapporteurs.
[8] It is herein generally called "the Protocol."
{3}
CHAPTER II.
POINTS OF APPROACH.
There are various possible points of approach to the consideration of
the Protocol of Geneva. In view of the importance of the document,
doubtless all such methods are useful. Indeed, in the discussion of
such a paper, it is perhaps hardly possible exclusively to adopt only
one angle of view, such as the historical, the political, etc. My own
consideration of the paper, however, is to be primarily from the legal
viewpoint; without attempting wholly to avoid other points of view I
shall seek not to stress them.
The Protocol is an elaborate and technical international document; and
even in attempting to consider it primarily from the legal viewpoint
there are various methods or arrangements of such a discussion. The
general starting point which seems to me to be most desirable is that
of the legal effect of the Protocol upon the international relations of
the States which become parties to it, both as among themselves and as
to States not parties.
It will of course in this connection be necessary to consider the
obligations fixed by the Protocol in the event of its breach, as well
as those which are imposed by its acceptance and performance. These
latter may, however, very properly be first considered.
Accordingly, the first discussion will relate to the obligations of the
States which become parties to the Protocol as among themselves,
particularly in connection with the due performance of these
obligations by those parties.
Before coming to this first discussion, however, there are certain
general observations which may be made.
In the first place the paper is called a Protocol. The precise reason
for the use of this term does not appear; but it is probably due to the
fact that the Protocol of Geneva is in a sense supplementary to other
international agreements such as the Covenant of the League of Nations
and the Statute of the Permanent Court of International Justice; and
perhaps because the {4} Protocol is intended to be preliminary to
amendments to the Covenant (Article I, paragraph 1, of the Protocol).
Allusion is made to this provisional character of the Protocol of
Geneva in the Report[1] made by the First and Third Committees to the
Fifth Assembly of the League of Nations, where it is said:
"When the Covenant has been amended in this way
some parts of the Protocol will lose their value as between
the said States: some of them will have enriched the
Covenant, while others, being temporary in character, will have
lost their object.
The whole Protocol will remain applicable to relations
between signatory States which are Members of the
League of Nations and signatory States outside the
League,[2] or between States coming within the latter
category.
It should be added that, as the League realizes its aim
of universality, the amended Covenant will take the place,
as regards all States, of the separate régime of the Protocol."
Of course, as is pointed out in some detail by Satow (Diplomatic
Practice, Second Edition, Vol. II, pages 270 _et seq._), the word
"protocol" is used with quite a number of different meanings. In the
present case the meaning of the word is nothing more nor less than
treaty or convention.
It is naturally impossible to consider or discuss the effect of the
Protocol of Geneva without constant reference to the text of the
Covenant, to which the Protocol refers throughout. It is also
necessary to consider to some extent the Statute of the Permanent Court
of International Justice and even certain of the provisions of the
Treaties of Peace, other than the Covenant.
Moreover, as any consideration of the legal situation created by the
Protocol must assume that the document has come into force, it will be
interesting to sum up the provisions of the Protocol in that regard,
particularly as they are somewhat unusual.
[1] The English text of this Report is Annex C, p. 156.
[2] From the theory that the Protocol may properly be signed by
non-Members of the League, I dissent. See _infra_, p. 10., _et seq._
{5}
CHAPTER III.
THE COMING INTO FORCE OF THE PROTOCOL.
The Protocol is dated at Geneva on October 2nd, 1924. It is drawn up
in both French and English and the text of both languages is authentic.
It is written in a single original. It was recommended to the Members
of the League for acceptance by a resolution[1] unanimously passed in
the Assembly by the affirmative vote of 48 Members of the League, and
it has been signed by the representatives of various countries.
This recommendation by the Assembly, however, and these signatures, do
not, as to any signatories, bring into force the Protocol, which, by
its terms, must be ratified, the ratifications to be deposited at the
Secretariat of the League at Geneva.
The first preliminary to the coming into force of the Protocol is its
formal ratification by at least 13 Members of the League; and these
ratifications must include those of at least three of the four Great
Powers which are Members--Great Britain, France, Italy and Japan. But
even these ratifications do not bring the Protocol into force. The
absence of such ratifications by May 1st, 1925, _may_ result in the
postponement of the Disarmament Conference from the date provisionally
fixed, June 15th, 1925. But this is a matter which I shall discuss
later.[2]
If and when the ratifications above mentioned are deposited, a
procès-verbal to that effect is drawn up; but this procès-verbal does
not, as is usual when a procès-verbal of the deposit of ratifications
is drafted, bring into force the Protocol. The date of the coming into
force of the Protocol is stated as follows (Article 21):
"as soon as the plan for the reduction of armaments
has been adopted by the Conference provided for in
Article 17."
In other words, the Protocol will not bind any State that {6} ratifies
it unless and until the Conference for the Reduction of Armaments
adopts a Plan for such reduction. _If_ such Conference is held and
_if_ such Plan is adopted, the Protocol will, on the date of the
adoption of the Plan, come into force as among the States which have
then ratified it. Such is the effect of the provisions of Article 21
of the Protocol.
Other States, which have not at the date mentioned ratified the
Protocol, may thereafter accede to it, as is provided by the third
paragraph of Article 3, and of course the obligations of these States
will commence with the date of such accession.
Furthermore, provision is made[3] by which the Protocol, even after
coming into force, may become, as it says, "null and void." It might
well be argued that the becoming "null and void" of the Protocol
related back to the date when it came into force.
However this may be, it is important to notice here the provisions in
this regard. The Conference for the Reduction of Armaments has, under
the hypothesis, adopted a Plan for such reduction. That Conference has
also to fix the time within which that Plan is to be carried out. The
Council of the League is then to consider whether the Plan for the
Reduction of Armaments adopted by the Conference has or has not been
carried out within that fixed period. Presumably such consideration by
the Council of the League would be had immediately after the expiration
of the period fixed by the Conference; the Council, if it then
considers that the Plan for the Reduction of Armaments has not been
carried out, being limited, however, in such consideration to "the
grounds" (French text--"conditions") laid down by the Conference in
that respect, then declares that the Plan has not been carried out and
the Protocol becomes "null and void."
Accordingly, the Protocol can come into force as a legal obligation
only on the date of the adoption by the Conference of the Plan for the
Reduction of Armaments; and from that date till the date when the
Council of the League of Nations declares that the Plan has or has not
been carried out, it may be said {7} that the Protocol is only
_provisionally_ in force; it is subject to avoidance.
The question here arises as to what is meant by the language of the
Protocol when it speaks of the Plan for the Reduction of Armaments
being "carried out," or, in the French text, "execute." This is a
question rather difficult of answer. Certainly the expression can
hardly refer to the actual _physical_ carrying out of such a Plan; for
that might require a very long period. It seems to me that the
expression envisages the formalities requisite for such a Plan. The
Conference for the Reduction of Armaments which is to draw up a Plan
for such reduction is to draw up, in other words, a Treaty or Treaties
between the parties to bring about such reduction. Such Treaty, or
such Treaties, will of course be voluntary agreements and will of
course require ratification subsequent to the holding of the Conference
itself. Accordingly, it is my view that the "carrying out" of the Plan
for the Reduction of Armaments adopted by the Conference means in the
Protocol the ratification of such Plan, that is to say, the
transformation of the Plan into a binding agreement. Of course, the
precise terms as to ratification, the number of ratifications required,
the time of the deposit of ratifications and all such other formalities
are for the Conference to decide; the reference here, however, is to
those provisions as they may be drafted.
Accordingly, the "grounds" to be laid down by the Conference for the
Reduction of Armaments, on which it may be declared by the Council that
the Plan for the Reduction of Armaments has not been carried out, will
mean, I take it, the laying down of some requirement that the Plan for
the Reduction of Armaments be formally ratified within a time stated by
a certain number of States, including certain named States; in default
whereof, the Council may and will declare the Plan for the Reduction of
Armaments not to have been carried out.
It is to be observed that the Protocol in the last paragraph of Article
21 speaks of the possibility of a Signatory failing to "comply" with
the reduction of armaments Plan "after the expiration of the period
fixed by the Conference."
{8}
This refers, I think, to a failure by a particular Signatory to ratify
the Plan for the Reduction of Armaments, the effect being, so far as
Article 21 is concerned, that such Signatory would be bound by the
terms of the Protocol but could not benefit by them.
The language of this last paragraph of Article 21 is, however, broad
enough to include the case of a State which had ratified the Treaty
containing the Plan for the Reduction of Armaments and had then failed
to carry out its agreement regarding such reduction.
It will thus be seen that the Protocol of Geneva is wholly dependent
upon the success of the Conference for the Reduction of Armaments; and
the success of that Conference depends wholly upon the voluntary
agreement then made. There is nothing in the Protocol which requires
the States represented at the Conference to agree to any particular
plan for the reduction of armaments; the assent which they may give to
such plan must be voluntary.
The question of the proceedings of the Disarmament Conference will be
discussed hereafter.[4]
However, there is one point that may be mentioned here. The Plan for
the Reduction of Armaments drawn up by the Conference or, in other
words, the Treaty or Treaties drawn up by that Conference, will not be
perpetual in their operation. No plan for disarmament, no treaty
regarding reduction of armaments could possibly be perpetual in its
detailed provisions. Not only does this follow from the nature of such
an agreement, but it is explicitly laid down in Article 8 of the
Covenant that any such Plan is to be subject to reconsideration and
revision at least every ten years. Accordingly, the Treaty or Treaties
for the Reduction of Armaments to be drawn up by the Conference will be
in this sense temporary, that they will have a fixed limit of time for
their operation, precisely as the Treaty Limiting Naval Armament drawn
up at the Washington Conference may be terminated in 1936.[5]
{9}
There is no provision made in the Protocol of Geneva for the withdrawal
of any State from its obligations, assuming that those obligations come
finally into force. On its face the Protocol is therefore perpetual;
but it is not really so. The obligations of the Protocol are so
intertwined with the obligations of the Covenant that there is no doubt
in my mind that the withdrawal from the League by a Member thereof
(when bound by the Protocol) would release that State from the
obligations of the Protocol as well as from the obligations of the
Covenant.
The obligations of the Covenant are terminable by any Member of the
League, as to itself, on two years notice. The obligations of the
Protocol go much farther than the obligations of the Covenant. The
obligations of the Protocol are, by its terms, later to be merged in
the Covenant itself, without in any way impairing the withdrawal clause
of the latter document.
So clearly it is not to be supposed that the obligations of the
Protocol of Geneva, as to a Member of the League, are eternal. If the
lesser obligations of the Covenant end as to a particular Member of the
League upon withdrawal, surely the greater obligations of the Protocol,
as to that League Member, end also.
The foregoing shows the fallacy, as a matter of logic, of the idea that
a non-Member of the League may be bound by the Protocol and yet not be
a party to the Covenant; for it would mean that a Signatory might be
forever bound to a subsidiary instrument (the Protocol) although the
primary instrument (the Covenant) was terminable; but I discuss this
more at length later.[6]
Furthermore, it should be repeated that the Protocol is intended to be
only a temporary document in the sense that, if it comes finally into
force, it is contemplated that the Covenant will be amended
substantially in accordance with the provisions of the Protocol.
[1] Annex D, p. 210 at p. 211, _et seq._
[2] p. 97, _et seq._ It is settled that that Conference will be
postponed.
[3] Article 21.
[4] _Infra_, p. 97, _et seq._
[5] Article XXIII. See Conference on the Limitation of Armament,
Government Printing Office, 1922, p. 1603.
[6] p. 10, _et seq._
{10}
CHAPTER IV.
PARTIES TO THE PROTOCOL.
The theory of the framers of the Protocol of Geneva is that it may be
signed and ratified by non-Members of the League of Nations as well as
by Members of the League.
Various words of the Protocol (_e. g._, Article 12) indicate this, the
Report to the Assembly so states,[1] and the Resolution[2] of the
Assembly recommending the Protocol for acceptance by the Members of the
League of Nations specifically says that the Protocol shall be "open
for signature by all other States" as well as by Members of the League.
Now of course all this is conclusive as to the technical question as to
whether a non-Member of the League of Nations _may in fact_ sign the
Protocol. Such a State _may_ legally sign, because the other Parties
to the Protocol invite such signature. And if any such State should
sign, and ratify, it becomes a Party to the Protocol, regardless of
logic.
Nevertheless I submit that the whole idea of the possibility of
Signatories to the Protocol who are non-Members of the League, is
fundamentally contrary to the whole principle, spirit and terms of the
Protocol itself.
In the first place, the Protocol is intended as a development of the
Covenant; the Protocol is meant to be a temporary paper; its provisions
are to be merged in the Covenant itself by amendment of that Document.
How then can a State become a party to this temporary and provisional
paper if it is not a party to the permanent and definitive document?
If we examine the detailed provisions of the Protocol, the logical
conclusion is equally certain. Surely a non-Member of the League
cannot really "make every effort" to secure "introduction into the
Covenant of amendments" (Article 1). Is this a matter for non-Members
of the League?
{11}
Article 3 of the Protocol contemplates that the Signatories thereto
shall accede to the special protocol regarding the second paragraph of
Article 36 of the Statute of the Permanent Court. But if we turn to
the provisions regarding the Permanent Court we find that such States
as Russia and Mexico and Egypt are not entitled to accede to that
special protocol at all, before entering the League.[3] Accordingly,
if any one of these three States, non-Members of the League, should
sign and ratify the Protocol of Geneva, it could not legally carry out
the engagements of Article 3 thereof.
All the provisions of Articles 4 to 6 inclusive of the Protocol of
Geneva relate to disputes between the Signatories and contemplate the
possible submission of any such dispute to the Council or Assembly of
the League of Nations. But such submission can take place only under
the provisions of the Covenant; and under Article 17 of the Covenant a
non-Member of the League may not come within the provisions of the
Covenant except upon invitation by the Council and upon terms stated.
Without going into further detail, I repeat that the obligations
contemplated by the Protocol are, in theory, no more than
interpretations, or future elaborations, of the obligations of the
Covenant. It seems to me logically impossible to suppose that such
interpretations or amplifications may be made applicable to States
which are free from the obligations in their primary form.
If this matter is looked at realistically and concretely we find that
there is hardly any possibility of the Protocol of Geneva being signed
by any State which is a non-Member of the League. The United States
and Russia will certainly not sign; the admission of Germany and Turkey
to the League is contemplated. The only other States[4] of any
international consequence outside the {12} League are Mexico and Egypt;
and the likelihood of either of these two States becoming a party to
the Protocol of Geneva is too remote for serious consideration.
Accordingly, in the subsequent discussion, I shall assume that,
whatever may be the legal possibilities, there is no real possibility
of any State which is not a Member of the League of Nations becoming a
party to the Protocol of Geneva.
[1] Annex C, p. 156 at p. 167.
[2] Annex D, p. 210 at p. 212.
[3] Under the Resolution of the Council of May 17, 1922, any State may
accept the jurisdiction of the Permanent Court by filing a declaration
to that effect; but this is not the same thing as acceding to the
Protocol of December 16, 1920.
[4] See Membership in the League of Nations, by Manley O. Hudson, A. J.
I. L., July, 1924.
{13}
CHAPTER V.
RELATIONS INTER SE OF THE SIGNATORIES TO THE PROTOCOL.
It is here assumed that only Members of the League of Nations may
become parties to the Protocol of Geneva[1]; the Protocol is a
development of the Covenant and it would, in any view, be logically
impossible for any State, not a Member of the League, to become a
Signatory to the Protocol; on the other hand, Members of the League
are, of course, not obligated to sign or to ratify the Protocol of
Geneva.
Accordingly, if the Protocol shall come into force, the Powers of the
world, from the point of view of the Protocol, will, at least
theoretically, be divided into three classes:
1. Members of the League of Nations who are parties to the
Protocol.
2. Members of the League of Nations who are not parties to the
Protocol.
3. Non-Members of the League of Nations who are not parties to
the Protocol.
From this it follows, again looking at the matter from the point of
view of the Protocol of Geneva, that the international relations of the
various countries of the world would fall into the following six
classes:
1. Relations _inter se_ of the Signatories to the Protocol.
2. Relations _inter se_ of the Members of the League not
Signatories to the Protocol.
3. Relations _inter se_ of non-Members of the League.
4. Relations of the Signatories to the Protocol with the Members
of the League not Signatories thereto.
5. Relations of Members of the League not Signatories to the
Protocol with States non-Members of the League.
6. Relations of the Members of the League Signatories to the
Protocol with States non-Members of the League.
{14}
It is proposed in this discussion first to consider the first of the
above six classes, namely, the relations of the Signatories to the
Protocol, _inter se_; and this discussion will proceed primarily on the
assumption that the obligations of the Protocol are carried out.
In numerous places the Protocol speaks of the parties thereto as "the
signatory States," _e. g._, Articles 1, 2, 3, 8, 11, etc. It is
curious this is so in view of the meticulous insistence by the British
Dominions at the Peace Conference, on the use, throughout the text of
the Covenant generally, of the expression "Members of the League"
instead of "States Members of the League."[2]
Certainly it is contemplated that ratification of the Protocol may be
made on behalf of the British Dominions. Accordingly, I think that the
use in the Protocol of the expression "signatory States" is probably an
inadvertence, as in no proper international sense of the word are the
British Dominions States, despite the fact that they have an
international status under the League of Nations and even otherwise.[3]
The first point to be noticed is that under Article 2 of the Protocol
there is a very general and a very sweeping obligation on the part of
the Signatories not to resort to war. This is a point of the utmost
importance. The obligation goes very much farther than anything in the
Covenant; the language of this obligation will be examined in detail
hereafter.
Before coming to that, however, it is well to look at the provisions of
the Protocol regarding the settlement of international disputes. War
is one method for the settlement of such disputes, and, in order to
make effective the obligation of the Signatories not to resort to war,
substitute methods of settlement are provided.
It is very natural and proper that this should be done. A mere
obligation not to resort to war, without more, would almost imply that
disputes between the parties to the obligation should {15} find _some_
other method of settlement. For if some other method could not be
found, feelings due to the continuance of the dispute might well arouse
such passions in one country or another as to sweep away the obligation
for peace. The two questions of the ending of war and the settlement
of disputes between States are not only logically but realistically
very closely related.
Disputes between States are often regarded as comprising those that
relate to international questions and those that relate to domestic
questions, the former being divided into justiciable and
non-justiciable disputes.
I prefer, however, _for this discussion_, to classify possible
international disputes in three kinds, namely:
1. Disputes as to international questions.
2. Disputes as to domestic questions.
3. Disputes as to _status quo_.
I am aware of the fact that such classification as the foregoing is
overlapping. Disputes as to the _status quo_ will to some extent fall
within the two classes first mentioned; they may relate therefore to
questions which are international or which are domestic in their
nature. However, I think the classification is justified, at least for
reasons of convenience, and also, in my opinion, for reasons which go
very much deeper.
Let me illustrate this by reference to questions arising from
frontiers. The existence and the location of a frontier are
essentially questions of international import. The location of a
frontier may, in a given case, not only be an international question in
the sense that it should be settled internationally, but also in the
sense that it is justiciable, according to the usual idea of
justiciable questions. This would be so in a case where the location
of the frontier depended wholly upon the interpretation of a treaty
between the two neighboring States.
But it is quite possible to imagine an international question regarding
a frontier which is not in any way justiciable; such, {16} for example,
was the question as to where the frontier between Poland and Russia
should be drawn after the World War.[4] That some frontier had to be
drawn was obvious; but there was no possible legal basis for
determining _where_ it should be drawn. The question was one of
judgment, to be settled by agreement between the parties, if possible;
or otherwise, if it was to be peacefully settled, by reference to some
sort of tribunal which would decide according to principles[5] of
equity, impossible to express in any precise legal formula. In other
words, the question was an international political one.
Again, suppose that the frontier between the two States has been
settled by agreement and that there is no doubt whatever where it is.
One of the two States desires to have that frontier changed; in other
words, desires that there shall be a cession of territory. Here is a
question of the _status quo_. In a sense it may be called
international, because it relates to an international frontier; but it
not only falls wholly outside any idea of justiciable questions in the
international sense, but also outside any idea of being a political
question which any tribunal whatever could decide on _any_ basis. In
other words, it is within that class of cases of an international
nature in regard to which two States _may_, if they choose, negotiate,
but in regard to which either one of them may at its pleasure refuse
even to consider negotiations.
In any condition of international affairs which it is possible to
visualize under the present State system, this must continue to be so.
The State system presupposes necessarily the existence of States. One
of the inherent conditions of the existence of a State is its right to
the possession of its own undisputed territory as against any other
State,[6] which does not mean, I mention in passing, as against a
revolutionary movement _within_ the State; that is another story. The
putting in question of this undisputed {17} right of one State to hold
its own territory as against another State would mean the putting in
question of the existing State order as a whole.
Further, while I have included domestic questions as a separate class
of questions in the above list, I think that logically many of them
fall within the thought of questions which concern the _status quo_. I
do not dispute that these domestic questions may at times have an
international aspect; but they are questions which each State has an
absolute right under law to regulate according to its own pleasure, and
it is for this reason that they fall within the class of cases which
are, in theory, not to be questioned internationally. Of course a
State may, if it chooses, negotiate regarding them, just as it may, if
it chooses, negotiate about the cession of part of its territory. But
it may also, if it chooses, so to speak end the negotiations by
refusing to commence them at all.
However, it is proper, none the less, to consider these domestic
questions as a separate group, for the reason that there is a
possibility of development toward their international consideration
within the present State system. I shall pursue that thought further a
little later.
[1] Those who framed the Protocol have a different opinion. See the
discussion, _supra_, p. 10, _et seq._
[2] _cf._ the expression in Article 34 of the Court Statute "States or
Members of the League of Nations."
[3] The exact position of the British Dominions within the League is
not yet wholly settled. See the recent British and Irish notes
regarding the Irish Treaty, London Times, December 16 and 24, 1924.
[4] See Treaty of Versailles, Article 87, third paragraph.
[5] Such as, perhaps, the idea of self determination, the economic
situation of the inhabitants, etc.
[6] See the Declaration of the Rights and Duties of Nations adopted by
the American Institute of International Law, specially Paragraph IV, A.
J. I. L., Vol. X, pp. 212, 213.
{18}
CHAPTER VI.
INTERNATIONAL DISPUTES.
So far as concerns disputes of an international nature, the Protocol,
taken in connection with the Covenant, provides for a final and binding
settlement of such disputes between Signatories to the Protocol in
every case whatsoever.
In order to determine the precise effect of the Protocol in this
regard, it is necessary first to examine the provisions of the Covenant.
The provisions of the Covenant which particularly cover this matter are
those of Articles 12, 13 and 15. Let us therefore consider the text of
these Articles,[1] looking in the first place at the text of Articles
12 and 13 and the first paragraph of Article 15, which follow:
ARTICLE 12. "The Members of the League agree that, if
there should arise between them any dispute likely to
lead to a rupture, they will submit the matter either to
arbitration or judicial settlement or to enquiry by the
Council and they agree in no case to resort to war until
three months after the award by the arbitrators or the
judicial decision, or the report of the Council.
"In any case under this Article, the award of the
arbitrators or the judicial decision shall be made within a
reasonable time, and the report of the Council shall be made
within six months after the submission of the dispute."
ARTICLE 13. "The Members of the League agree that,
whenever any dispute shall arise between them which they
recognise to be suitable for submission to arbitration or
judicial settlement, and which cannot be satisfactorily
settled by diplomacy, they will submit the whole subject
matter to arbitration or judicial settlement.
"Disputes as to the interpretation of a treaty, as to
any question of international law, as to the existence of
any fact which, if established, would constitute a breach
of any international obligation, or as to the extent and
{19}
nature of the reparation to be made for any such breach,
are declared to be among those which are generally
suitable for submission to arbitration or judicial settlement.
"For the consideration of any such dispute, the Court
to which the case is referred shall be the Permanent Court
of International Justice, established in accordance with
Article 14, or any tribunal agreed on by the parties to the
dispute or stipulated in any convention existing between
them.
"The Members of the League agree that they will carry
out in full good faith any decision or award that may be
rendered, and that they will not resort to war against a
Member of the League which complies therewith. In the
event of any failure to carry out such an award or
decision, the Council shall propose what steps should be taken
to give effect thereto."
ARTICLE 15 (first paragraph). "If there should arise
between the Members of the League any dispute likely to
lead to a rupture, which is not submitted to arbitration
or judicial settlement in accordance with Article 13, the
Members of the League agree that they will submit the
matter to the Council. Any party to the dispute may
effect such submission by giving notice of the existence
of the dispute to the Secretary-General, who will make all
necessary arrangements for a full investigation and
consideration thereof."
Looking at these provisions in their entirety, it will be seen that the
engagements taken by the Members of the League relate to "any dispute
likely to lead to a rupture." This is the language of both Articles 12
and 15. We may say that this means any dispute whatever, any serious
dispute from the point of view of international peace. We may lay
aside trifling disputes which cannot lead to serious differences
between States, whether or not they drag on through years of diplomatic
negotiation. Accordingly, we may say that the Covenant in these
provisions covers any international dispute whatever as to
international questions in the sense above mentioned.
Further examining the provisions above quoted, we see that {20} the
Members of the League agree in every such possible case to do one of
three things: they agree to submit all disputes either (a) to
arbitration or (b) to judicial settlement or (c) to the Council. They
do _not_ agree to submit any particular case or any particular class of
cases to arbitration; they do _not_ agree to submit any particular case
or any particular class of cases to judicial settlement; but they do
specifically agree that all cases that are not submitted to the one or
to the other, go to the Council. The effect of such submission to the
Council will be discussed hereafter; at the moment it is only necessary
to point out that under these provisions the submission to the Council
is _obligatory_. That submission _must_, under Article 15, take place,
in the absence of submission to arbitration or to the Court. But the
submission to arbitrators or to the Court is voluntary.
The first change made in this scheme of the Covenant is that Parties to
the Protocol agree to accept the so-called "compulsory" jurisdiction of
the Permanent Court of International Justice in the cases mentioned in
paragraph 2 of Article 36 of the Statute of the Court. Thus, in such
cases the dispute between the Parties would go, as a matter of right,
at the demand of either one of them, to the Court, where it would be
finally determined. To that extent the jurisdiction of the Council is
lessened.
Under the Protocol, this acceptance of the so-called compulsory
jurisdiction of the Permanent Court of International Justice is to take
place by the signatory States within a month after the coming into
force of the Protocol, which, as we have seen, would mean within a
month after the adoption by the Conference on Reduction of Armaments of
the plan for such reduction.
The Parties to the Protocol thus agree to accept this so-called
compulsory jurisdiction of the Permanent Court; but it is provided that
they may do so with appropriate reservations.
Accordingly, it is desirable to consider summarily just what this
so-called compulsory jurisdiction of the Permanent Court of
International Justice is.
All that the word "compulsory" in this connection means is "agreed to
in advance." The general provisions of the Court {21} Statute[2]
describe the jurisdiction of the Court as extending to any case which
the Parties, either after it has arisen or by "treaties and conventions
in force,"[3] choose to submit. The so-called optional clause relating
to the so-called compulsory jurisdiction in effect provides that as to
certain defined classes of cases the parties agree, now, in advance of
any dispute, that disputes of those particular characters will be
submitted to the Court.
The definition of these classes of disputes is found in Article 36 of
the Statute of the Court, and in this regard follows generally in its
language the provisions of the second paragraph of Article 13 of the
Covenant, which declares that these particular classes of disputes are
"among those which are generally suitable for submission to arbitration
or judicial settlement."
By the so-called optional clause relating to the Court Statute, it is
these classes of disputes as to any or all of which the jurisdiction of
the Court may be accepted as "compulsory _ipso facto_ and without
special agreement, in relation to any other Member or State accepting
the same obligation."
The classes of "legal disputes" mentioned in Article 36 of the Court
Statute are as follows:
"legal disputes concerning:
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established, would
constitute a breach of an international obligation;
(d) The nature or extent of the reparation to be made for
the breach of an international obligation."
In regard to these definitions of classes of disputes, it is necessary
to make some general observations. No matter what definition may be
made in advance as to the classes of disputes which are to be submitted
to the Court, a difference of opinion {22} may exist in any given case
as to whether the particular dispute which has arisen is or is not
within one of the defined classes.
It follows that the mere definition of classes of disputes which, by
agreement in advance, are to be submitted to a particular tribunal, is
not in itself sufficient; any such definition must be accompanied by a
provision for a case when one of the parties to a dispute claims that
the particular dispute is within the defined class and the other party
to the dispute does not admit that the dispute is within the defined
class; some method must be provided for determining that preliminary
question of jurisdiction.
Let me put this concretely: let me suppose that two Members of the
League have agreed to the optional clause and that a dispute arises
between them. One party to the dispute says that the question involved
concerns the interpretation of a treaty and accordingly submits the
question to the Permanent Court of International Justice in accordance
with the procedure under the Statute of that Court. The other party to
the dispute says that the dispute does not in any way concern the
interpretation of the treaty and submits the matter to the Council of
the League under Article 15 of the Covenant.
Clearly there would be here for decision a preliminary point of
jurisdiction and, in so far as the optional clause is concerned, the
matter is covered by the Statute of the Court in the final paragraph of
Article 36, reading as follows:
"In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of
the Court."
In other words, by the Court Statute, it is for the Court to say
whether or not it has jurisdiction in any such case; so that in the
particular case above supposed, where one party was seeking to go to
the Court and the other party was seeking to go to the Council, it
would be for the Court in the first instance to decide as to the
jurisdiction. If the Court decided that it had jurisdiction, the
dispute would come on for decision by the {23} Court; if the Court
decided that it had not jurisdiction, consideration of the dispute
would come on before the Council.
The provision in the last paragraph of Article 36 of the Court Statute
is a wise and necessary one. It avoids conflicts of jurisdiction and
it permits a preliminary and easily realizable method of determining
the question of jurisdiction.
It is unnecessary to consider in further detail the described classes
of legal disputes mentioned in Article 36 of the Court Statute. Any
party to the Protocol may make reservations in acceding to this
optional clause and, as the Report of the First and Third Committees to
the Assembly points out,[4] these reservations may be of a very
extensive character; but the fact that the Signatories to the Protocol
agree to accede, even to some extent, to this so-called compulsory
jurisdiction of the Permanent Court is of great importance.
However, the most important change which the Protocol makes in regard
to the settlement of international disputes concerns the functions of
the Council in the case of a dispute submitted to it.
The only respect in which the functions of the Council in such a case
under the Protocol are _precisely_ the same as the functions of the
Council under the Covenant is that the Council must begin along the
lines of mediation and conciliation.[5]
This, we may observe, comes directly from the third paragraph of
Article 15 of the Covenant, which provides that "the Council shall
endeavour to effect a settlement of the dispute." Such language
relates to the mediatory and conciliatory functions of friendly
governments. The Council is composed of representatives of
governments, of governments friendly to the parties to the dispute,
because the governments which are Members {24} of the Council as well
as the governments which are parties to the dispute have joined in a
Covenant of Peace.
Accordingly, the first duty of the Council, in the event of any
submission of a dispute, is to mediate and conciliate. These are very
valuable functions. They permit of delay. The governments which
compose the Council may prolong the consideration of the point at
issue.[6] The parties to the dispute have come to the Council for a
settlement; and the Council may deliberate during a reasonable period
so as to permit passions to cool and reason to resume her sway.
Now, as I remarked, these mediatory functions of the Council remain
precisely the same under the Protocol as under the Covenant.
Suppose, however, the mediation fails, what is the next duty of the
Council? Under the Covenant,[7] the next duty of the Council would be
this, to consider the dispute; but under the Protocol (Article 4(1)),
the next duty of the Council is to "endeavour to persuade the parties
to submit the dispute to judicial settlement or arbitration." This
obviously is a very different thing from consideration of the dispute
by the Council itself. Instead of considering the dispute, the Council
says to the parties: Is there not some kind of a tribunal to which you
are willing to refer it?
Still more striking is the fact that, even if this endeavour fail, it
does not even then necessarily become the duty of the Council to
consider the dispute on its merits. _Either one_ of the parties may
demand the setting up of a Committee of Arbitrators. The difference
between such a provision as this and the provisions of the Covenant is
remarkably great. Under the Covenant, when, as the outcome of the
mediation of the Council, the parties do not themselves agree upon a
settlement, the Council is inevitably required to consider the merits
of the case. Under the Protocol, if the parties do not agree, the
dispute goes to the Court or to a tribunal of some kind, if such a
reference is agreed on; it next goes to a Committee of Arbitrators if
only {25} one of the parties demands it; this means that the Council
never gets to consideration of the dispute on the merits, unless the
parties to the dispute at the time are unanimous in wishing that this
shall happen.
It is obvious that when we have a situation where _any_ party to a
dispute may demand the appointment of an arbitral committee, the
Council of the League can only consider cases of dispute which all
parties thereto, _after_ the dispute has arisen, _unanimously_ agree
should be considered by the Council.
The reason why I attach the utmost significance to this change, in
connection with some other changes which are to be noticed, is that it
is a total departure in theory from the idea of the Covenant that
political disputes should be settled by a political body such as the
Council of the League of Nations. After all, that was the fundamental
idea of Article 15 of the Covenant, that the Council of the League
should lay hold of the dispute, at least to the extent of preventing
war from arising out of it. _The theory of the Protocol is that every
kind of international dispute should be settled either by a Court or by
arbitration, that the functions of the Council are those of mediation
and conciliation and that the Council is never to consider the merits
of the dispute unless the parties thereto at the time of the dispute
unanimously wish such consideration_. Even then, as we shall see, a
single dissent in the Council regarding the merits is sufficient to
render its consideration of no effect, and arbitration again comes into
play.
It should be pointed out here that if the dispute goes to a Committee
of Arbitrators at the request of one of the parties, any point of law
in dispute must be sent by the Committee of Arbitrators to the
Permanent Court of International Justice for an opinion.[8]
Now, let us proceed with the duties of the Council. If the dispute has
gone to arbitration, the functions of the Council are at an end; but if
no party "asks for arbitration,"[9] then and only {26} then the Council
takes up the consideration of the dispute. In this case, the Council
in fact becomes an arbitral board, _provided_ it can reach a unanimous
conclusion; but its deliberations and recommendations have no effect
whatever if it cannot reach a unanimous conclusion.
Under the present composition of the Council the arbitral tribunal
which it would become in such circumstances would be composed of from
eight to ten members. The Council itself would be a body of at least
ten members, possibly eleven, possibly twelve (if the dispute were
between two outside parties), but the votes of the disputants would not
be counted.
It is clear that unanimity would be somewhat difficult to reach in a
tribunal of that size. It must be remembered that under the Protocol
no dispute can reach the Council for such an arbitral decision unless
(a) the mediatory efforts of the Council have failed and (b) the
parties have refused to agree upon any form of arbitration and (c)
neither party wishes arbitration.[10] Clearly a dispute which had
reached that stage would be one upon which unanimous agreement by an
arbitral tribunal of representatives of from eight to ten governments
would be improbable.
Furthermore, it seems to me almost certain under the new procedure that
one of the parties would demand arbitration,[10] because it would
always be in the power of one member of the Council to compel such
arbitration. This is a point which, so far as I have observed, has not
elsewhere been noticed.
The final provision of the Protocol for the settlement of the dispute
is that if the matter goes to the Council for consideration; and if the
views of the Council are not unanimous (aside from the parties), there
is then a "compulsory" arbitration. The Council proceeds itself to
determine the composition, the powers and the procedure of the
Committee of Arbitrators.
So, taking all the provisions together, the whole result is that a
dispute which is past the stage of mediation either goes to arbitration
outside the Council or must be unanimously decided {27} by the members
of the Council; and this puts it in the power of any one member of the
Council to compel an arbitral award by an outside body.
It should be added that, under the Protocol, as under the Covenant, the
Assembly may be substituted for the Council in the consideration of a
dispute. It would have in such case the same mediatory powers as the
Council and the same arbitral powers as the Council if all the parties
refused any other form of arbitration.[11]
A very summary statement of the functions of the Council under the
Covenant shows what a radical change is made by the provisions of the
Protocol. Under the present provisions of Article 15 of the Covenant,
a dispute which passes the stage of mediation is considered by the
Council. If the Council is unanimous in making recommendations, their
effect is simply to prevent war, not finally to settle the dispute. If
the Council is not unanimous, its recommendations may have a moral
effect, but have no legal effect whatever.
So far as concerns these provisions of the Protocol, they may be summed
up as follows: they provide that every possible dispute between the
parties to the Protocol which is subject to international cognizance
shall be finally determined by a judicial or arbitral tribunal
resulting in a legally binding decision or award; and the parties to
the Protocol solemnly agree that they will accept any such decision or
any such award as final and that they will carry it out in full good
faith.[12]
[1] As amended.
[2] Article 36, first paragraph.
[3] For a collection of such agreements, see Publications of the
Permanent Court of International Justice, Series D, No. 4.
[4] see the discussion as to this in that Report, _infra_, p. 171.
[5] Doubtless the word "conciliation" is not a term of art in this
regard. But it seems to me that the functions of the Council under
Article 15 of the Covenant go somewhat beyond "mediation" in the strict
sense of the writers. See Nys, Droit International, Vol. II, p. 543;
also Vattel (1853 edition), p. 276. The Protocol (Article 6) calls a
result from these efforts "an amicable settlement." The French speaks
of such efforts as "l'essai de conciliation."
[6] The period of "six months" is mentioned in Article 12 of the
Covenant.
[7] Article 15, Paragraph 4, _et seq._
[8] Protocol, Article 4 (2) c.
[9] by a Committee of Arbitrators.
[10] By a Committee of Arbitrators.
[11] The powers and duties of the Assembly in such case are stated in
the last two paragraphs of Article IS of the Covenant. They are
continued, to the extent stated, by Article 6 of the Protocol.
[12] The question as to what may happen under the Protocol if such a
decision or award is _not_ carried out is discussed _infra_, p. 50, _et
seq._
{28}
CHAPTER VII.
THE STATUS QUO.
In many recent discussions of international affairs these two
originally innocent Latin words "_status quo_" have attained a really
malevolent significance. They seem to be regarded as meaning the same
thing as the motto "Whatever is, is wrong," and some who talk about the
_status quo_ appear to be in the same mind as Omar when he longed
"To grasp this sorry scheme of things entire
............................. --and then
Re-mould it nearer to the heart's desire."
It may be well to give some critical examination to this question of
the _status quo_ and to see what, if anything, is meant by the ideas
which lie back of these criticisms.
In the first place, the thought of the critics usually relates to
existing international frontiers and, in some instances, to existing
international conditions.
Now as to frontiers, if we look at the _status quo_ historically, we
find that it is practically universally the result of changes in a
previous _status quo_. The cause of these changes may have been war,
may possibly have been agreements and may have been something other
than either of these.[1] I shall refer to them later. But here it
should be observed that there is hardly any region of the globe where
the _status quo_ does not result from some one or more of these changes
within times comparatively recent.
Of course there are some exceptions to this observation, the Arctic and
Antarctic, for example; but in the populated regions of the globe, the
_status quo_, so far as frontiers are concerned, is a thing
comparatively new.
If we look at this existing situation, this _status quo_ of
international frontiers, we find that under modern conditions a {29}
comparatively short period of time is all that is necessary to give to
the _status quo_ the sanctity of universal consent, regardless of its
origin. Let me give an instance or two of this.
The Southern frontier of the United States, for part of its extent is
the direct result of a war between the United States and Mexico, a war
which by many, and I am among them, is considered to have been a war of
aggression. Now no one but a madman would believe that there ought to
be a change in the _status quo_ of the communities now existing in New
Mexico, which in 1850 was uninhabited country, by delivering them over
to Mexican rule. It is true that, during the World War, Germany
proposed to Mexico in the celebrated Zimmerman note[2] that this should
be done; but that incident only emphasizes the truth of my remark.
One of the most recent instances of a change in the _status quo_, so
far as the United States is concerned, is the case of the Virgin
Islands, which were bought from Denmark in 1916.[3] There was a change
made by agreement, made for a purchase price which was satisfactory to
the ceding country and made after a plebiscite of the inhabitants, who
voted almost unanimously for the change. Here, again, for reasons
differing from those of the foregoing instance, no one in his senses
would consider that the existing _status quo_ was not one of justice
and common sense.
Now, if we take the situation generally, we will find, in accordance
with the instances that I have mentioned, that the international
situation as to frontiers the world over[4] is, as to perhaps 99%,
either consecrated by usage which is the equivalent of common consent
or at least of common sense, or else is the result of agreement which
contains in it both elements.
The fact is, as any realist will admit, that every frontier, no matter
how absurd originally or even now, contains, in the very fact of its
existence, elements of stability and of reason which to _some extent_
justify its existence. The ordinary individual near a {30} frontier,
as distinguished from the agitator, becomes used to it. Business
transactions adjust themselves to it and in a very short time after its
creation any proposed change implies inherently a certain amount of
undesirability. It is impossible, perhaps, to imagine or to draw a
more absurd frontier than that between Switzerland and France in the
region of Geneva.[5] It is a monstrosity, geographically and
economically, and yet every one is contented with it or at least more
contented with it than with the idea of changing it. Naturally there
are certain attendant annoyances, as in a motor ride out of Geneva
which involves two or more Customs frontier examinations within a few
kilometres; and there are certain absurdities involved in catching
Swiss fish and French fish in different parts of Lake Leman; and one is
amused in reading Customs regulations which permit cows to pasture in
one country and be milked in the other without duty; but still every
one has gotten used to these matters and gets along with them.
So on the whole these two maligned words represent a rather peaceful
condition.
Before the World War the irritation produced in the minds of many by
the then existing _status quo_ largely related to the frontiers in
Eastern Europe and the somewhat similar irritation now existing among
alleged liberal thinkers is due to the frontiers created by the Peace
Treaties in general which are so usually and inaccurately referred to
as the Treaty of Versailles.
Here, I think it is fair to make a certain distinction regarding the
causes internationally of a given _status quo_ at any particular time
and of the existing situation in particular. These causes are two,
generally speaking--agreement and war. The instances in modern history
of changes in frontiers reached by free agreement are innumerable. I
do not see how any one who recognizes the existing state system can
object to them or believe that force should be used to change them. Of
course there are critics who object to the existing state system and
from {31} a theoretical point of view there is something to be said for
these objections. The real answer to them at this time is, that
whether they are good or bad, the present state system is one that, so
far as any human being can see now, is certain to exist for some more
centuries at least; and accordingly, outside of dreamland, we must take
this system as it is. Given that state system, agreements between
states as to their frontiers should be sacred. If a state can make an
agreement about its frontier, and then, because it made a bad agreement
or a stupid agreement or because circumstances changed after the
agreement was made, may go to war to set aside the agreement, the
result would only be international anarchy--the state system and
everything else would have disappeared together.
The other source of changes in the _status quo_ is war or strictly
speaking the treaties of peace that result from war. I pass by the
legal position, which is theoretically correct, that a treaty of peace
made by a vanquished Power with a victor is supposedly a free
agreement. This is true enough from the technical point of view but
has no bearing here. The fact is that when one side wins a war and the
other loses it, the treaty of peace is made under compulsion and
constraint.
The argument that is made by those who criticize the _status quo_ of
the Peace Treaties of 1919 and 1920 runs about as follows;
1. In certain respects the frontiers and arrangements created by
the Peace Treaties are unjust.
2. The setting up by the Peace Treaties of an international
organization against war is an attempt to sanctify the
wickednesses of the _status quo_.
3. Both the Treaties and the international organization which they
set up should at least be denounced and probably rejected.
This conclusion in various minds is different and uncertain,
but I think that I have stated it fairly.
Let us take these points up in their order.
As a preliminary, let me say that the Treaties of Peace in this
connection cannot include the Treaty of Lausanne with Turkey.
Certainly at the time that that Treaty was negotiated there was {32} no
imposed peace on Turkey; as a matter of fact the Turkish negotiators
had things pretty much their own way with the Allies. So that we are
considering merely the Treaties with Germany, Austria, Hungary and
Bulgaria.
In the first place, the question in many cases as to whether or not
there is any such thing as a "just" frontier is at least a very
doubtful one. I put it this way. If you have a situation where
reasonable, impartial and informed minds can differ, you do not have a
situation where it can be arbitrarily said by any one that any one
frontier is _the_ just frontier. Of course I am not talking of the
type of mind which insists that the particular line that he would draw
is the one and only line, despite the views of anybody else, because to
admit such a theory would mean the admission of the existence of
perhaps fifty different frontiers between the same two countries at the
same time.
Now as to the Peace Treaties, we certainly have that situation to a
very large extent. I do not see how any one could contend that the
existence of the Polish corridor is a perfect solution, nor do I see
how any one could contend that the absence of the Polish corridor would
be a perfect solution. One of the Polish Delegation said to me in
Paris in December, 1918, in substance, that it would be impossible to
draw a frontier between Germany and Poland which would not do an
injustice to one country or to the other or to both, and I believe that
his observation is perfectly sound.
The same thing is true as between Roumania and Hungary, and perhaps
more true.
My sympathies as to Vilna are rather with the Lithuanians than with the
Poles, but no one can read the documents without seeing that the Poles
have a case.
My own view has always been that the frontier between Poland and Russia
is too far to the East, but none the less the Russians, after a
fashion, agreed to it.
Most of those whose opinions I respect believe that it was wrong to
give the Austrian Tyrol to Italy. Despite those views, I have always
believed that the decision was defensible.
{33}
Different American experts of the highest qualifications, of the utmost
sincerity and of complete impartiality took different views as to Fiume
and the Italian-Yugo-Slav frontier generally. In such circumstances,
who could say, what tribunal could decide, the "just" frontier?
I am willing to admit that this uncertainty on the question of justice
may not exist in every case. I have always believed that some of the
cessions of territory forced on Bulgaria were utterly indefensible from
any point of view whatsoever. I refer, not to Macedonia, that
impossible jumble of contradictions, but more particularly to Western
Thrace.
My own view is that, on the whole and taken by and large, the existing
frontiers in Europe are more near to justice than ever before in modern
history.
But I am going to assume for the rest of this discussion that some of
these frontiers are wrong and should be changed. What is our answer to
that situation?
Let me point out in the first place that the mere fact that a frontier
was imposed by force resulting in a peace treaty is not necessarily
anything against it. Take the case of Alsace-Lorraine, for example; or
take a still more striking case, the case of Germany and Denmark.
Admittedly, in and out of Germany, the result as to Slesvig was just
and should continue.
Furthermore, it is necessary to point out that the _imposed_ origin of
a situation may not continue as the cause of that situation. It _may_
become accepted and voluntary, a full agreement. An instance here is
the reparations question. The _status quo_ as to reparations (a very
uncertain one) imposed by the Treaty of Versailles upon Germany, has
now, under that very Treaty, become an agreed _status quo_ by reason of
the voluntary adoption by Germany of the Dawes Report; for in reality
as well as in strictness of law that plan could not have been adopted,
much less be carried out, without the voluntary assent of Germany to
its provisions.
However, taking the frontier _status quo_ of the Peace Treaties at its
worst, that is to say at its alleged worst, admitting, in other {34}
words, that parts of it are unjust and are the result only of force,
what are we to say as to the future?
The possibility of change which, under the supposition that I have
made, would in itself be admittedly desirable, is along two lines, the
line of agreement or the line of war. The so-called fixation or
consecration of this _status quo_ under the League of Nations in no way
precludes a change by agreement, _the utmost that it can do is to
preclude a change by war_.
Accordingly, we are confronted at the outset with the question as to
whether the continuance of this _status quo_ is, or is not, a worse
evil than war. Even those who assume or who believe that war is the
preferable of the two must, in order to reach that belief, hold that
change by agreement is impossible. Such an assumption is contrary to
the facts of history, but for the sake of this discussion it may be
admitted.
In other words, I am willing to assume that a particular part of the
frontier _status quo_ is wrong, is unjust, and was brought about by
force, and should be changed, and that it cannot be changed by
agreement, and come directly to the question if, in these
circumstances, it should or should not be changed by war. My answer to
this question is: No. And I do not think it is necessary to put this
answer merely on the ground of the evil of the war itself, the death,
the destruction and so on. It is sufficient to support a negative
answer to point out that the effect of the war could not be limited.
War never is limited, it goes to lengths that have nothing to do with
the supposed injustice for which it is commenced.
Let me give an instance as a concrete supposition. Take the
Bulgarian-Greek frontier and suppose, as I do, that it ought to be
changed, and suppose further, as the advocates of war assert, that it
should be changed by war between Bulgaria and Greece; one of two things
would happen in all human probability. Either Greece would be the
victor and then not only would the boundary be as unjust to Bulgaria as
it is now, but much more so. Or else Bulgaria would be the victor, in
which case the injustice would simply be reversed; the frontier would
not move to any {35} theoretical point of justice, but would move to
the point dictated by the new Peace treaty.
In other words, war is not like a litigation which ends in the
settlement of a particular dispute. Any war, in its settlement, goes
far beyond the dispute which brought it about; every war opens up every
possible ambition and desire of the victor.[6] Did the World War end
merely in deciding the question about the rights of Austria and Serbia
in connection with the murder of the Archduke? Where was the fate of
the German colonies decided--in East Africa and in the Pacific, or on
the Western Front?
This whole question is of vital importance in connection with the
Protocol of Geneva. If that Protocol comes into force and is accepted
by Germany, by Austria, by Hungary and by Bulgaria, it will have this
effect at least; it will change what I may call the status of the
_status quo_ in regard to these countries to this extent, that in lieu
of that _status quo_ being one imposed by force, it will have become
one agreed to, at least to the point that it is agreed that the _status
quo_ may not be changed by war but only by agreement.[7] As a
practical example, it will mean, as we now see, that the German effort
to regain some of her lost colonies under the mandate system, will
again be an effort of negotiation[8] and not an effort of force.
All that the Covenant or the Protocol of Geneva attempts to do about
the _status quo_ is to say that frontiers shall not be changed _as a
result of aggression_. Indeed, the Protocol[9] protects even an
aggressor against loss of territory or of independence as a penalty for
its aggression; discussion, leading up perhaps to peaceful agreement
but to nothing else, is permitted by Articles 11 and 19 of the
Covenant, but that is all.
{36}
My view is that these provisions are sound and that they should not be
extended.
In saying, as I did, that the possibility of change in the _status quo_
is along only two lines, the line of agreement and the line of war, I
did not lose sight of the proposals made in various forms that there
should be some method under the League of Nations or otherwise by which
a tribunal of some sort would be empowered to make such changes from
time to time. Most of these proposals envisage plebiscites in one form
or another.
These proposals by their advocates are thought to have the advantage of
adaptability to changing conditions and to be more conformable to the
theory of the consent of the governed as a basis of Government.[10]
Of course, changes of frontiers made by any form of tribunal would in a
sense be changes of frontiers made by agreement among the parties; for
there would be necessarily an agreement in advance setting up such a
tribunal and engaging to conform to its conclusions.
It may perhaps be imagined that as between two particular countries
some such arrangement is possible along limited lines and relating to a
particular area or areas. I doubt even this possibility; but certainly
no general agreement in accord with such theories is possible and in my
judgment it would be highly undesirable if it were possible.
A tribunal which was charged with the duty of determining changes in
frontiers would clearly be a superstate, full-fledged, and in any sense
of that much abused term. Obviously, a change of frontier, if it went
far enough, might result in the substantial, or even the literal,
disappearance of one state by its incorporation within the territories
of another. It is inconceivable that any country would agree to such a
proposition. Even if it were limited very strictly, it would present
enormous difficulties and would certainly arouse fierce passions, as is
well illustrated by {37} discussion regarding the tribunal which is now
sitting to consider the frontier between Northern and Southern Ireland.
Nor would the matter be resolved by the suggested idea of plebiscites.
Anyone who will consider this question of plebiscites will realize that
the determining factor is not wholly the vote itself but to a large
extent the terms in which the plebiscite paper is written. He who
drafts the agreement for the plebiscite has much to do with what the
plebiscite will determine.[11] The questions are: Is the area to vote
as a whole or by districts, and where is the line of the voting area to
be drawn? The first of these was one of the great questions in the
Upper Silesia case. To apply the idea to an existing episode, let us
again refer to the case of Ireland. If the plebiscite were in the
whole of Ireland, it would go for Dublin; if it were in Ulster, it
would go for Belfast; if it were in Tyrone or Fermanagh, the result
would perhaps depend on the exact date when it was taken, as recent
elections indicate.
Another difficulty about plebiscites is this: Is their effect perpetual
or not, and if not how long does it last? If Tyrone votes for Dublin
today, is it an eternal decision or only till another vote in 1930, or
till when? There must be some time limit at least; plebiscites cannot
be held every year or even every five years, a fact which illustrates
the quiet advantages of some kind of a _status quo_.
Another question about a plebiscite is this: Let us concede that an
overwhelming vote such as took place in the regions of East Prussia
under the Peace Treaties is to be decisive forever. But suppose the
vote is very close; how about a vote where a little over half of the
population go one way and a trifle under half go the other? Is this
conclusive? Does it have the same moral effect as a larger vote? Is a
majority of one vote just as good as a majority of ninety per cent.?
{38}
In reality, the truth about these proposals for changing frontiers by
some sort of international procedure is that those who advocate them do
not believe in them as a general proposition. An Englishman who
believes in this sort of thing, for example, believes in it as regards
Macedonia or some such region; he does not for a moment think that such
a procedure should enable the people of British Columbia, say, to
become part of the United States. I do not mean to intimate that the
people of British Columbia have any such idea; but how is it going to
be possible to give the privilege (if it be a privilege) to people
along a few selected frontiers?
Another point, a fatal objection to such a scheme, is the inevitable
uncertainty which it would set up.
It may be a better thing to live in Manitoba than in North Dakota, or
to live in North Dakota than in Manitoba; but worse than almost any
conceivable place of residence would be a status which might change in
the future, so that one could not tell say five years ahead in what
country he was going to live. A frontier is not merely a line drawn on
a map or demarcated on the ground; a frontier means a _nexus_ of
customs, of laws, of traditions and of innumerable other things that
directly affect the daily life and conduct of every inhabitant. Any
lawyer who has had any experience in the matter will realize the
enormous difficulties that surround any transfer of territory merely in
connection with the drafting of the necessary papers[12]; and any
student who wishes to see how far-reaching the practical difficulties
may be need only consider the present situation in Alsace-Lorraine in
its bearing upon the relations between France and the Vatican.
The impossibility and the undesirability of setting up any system for
changing frontiers, such as has been discussed, are equally evident.
There is another phase of this general question of the _status {39}
quo_ which is sometimes discussed by those who seem to have a natural
antipathy to the words and that is what I may call the "raw materials"
phase. There is, let us say, no coal in Switzerland, and yet
Switzerland must have coal for her people to exist. There are no oil
wells in Norway, and yet in Norway there must be, if civilization is to
continue, automotive engines. It is obvious that there can be no
physical change in such a _status quo_. People who live in the
territory that is now Switzerland must get their coal somewhere else,
and motor transport in Norway must get its gasoline from other lands.
What is the international phase of such situations as this? There are
perhaps three possibilities. One is a war of conquest commenced by a
country in the situation of Norway in order to obtain dominion over
foreign oil lands; the second is some kind of agreement such as has
been suggested in a vague way by the Italians and others for some sort
of an international supervision in such matters; and the third is that
the situation shall continue as it is now--a matter of bargain and
sale, of supply and demand.
There is not the slightest doubt in my mind that, among these three,
the first would be as impossible as it would be wicked; the second is
wholly outside the realm of practical politics for centuries to come;
the third is the _status quo_, which has not in any case of world peace
resulted in any serious injustice.
Of course, if we go beyond such cases as Norway and Switzerland and
take countries much less favored, it is always a mystery as to why
people live in them. It is very difficult to understand, for example,
why there are settlers in Labrador, or why people are fond of Greenland
as a home; none the less these things are so. And under the existing
system of exchange of commodities there has perhaps never been a time
when even the people who live in these countries without certain
particular natural resources have not generally been able to obtain
sufficient of them as a result of their own efforts in the occupations
which the character of those lands permits.
Of course some countries are naturally richer than others and {40} must
remain so. In the Delta of the Nile, the land produces as many as four
crops a year and sells for something like $3,000 an acre. Such a
condition cannot be duplicated in a climate where only one crop is
possible.
But the notion that _any_ State or any combination of States, less than
world-wide, _could_ be substantially self-sufficient in respect of
_all_ raw materials is untenable. Even the United States lacks
(mentioning minerals only) nickel, cobalt, platinum, tin, diamonds.
Its supplies of the following are inadequate: antimony, asbestos,
kaolin, chromate, corundum, garnet, manganese, emery, nitrates, potash,
pumice, tungsten, vanadium, zirconium. Outside of minerals we lack
jute, copra, flax fiber, raw silk, tea, coffee, spices, etc. This mere
enumeration suggests the absurdity of the "raw materials" argument
against the _status quo_.[13]
Without going into it in detail, the mere fact that there are no copper
mines in Germany[14] or in England has never prevented either country
from obtaining all the copper that it needed by means of the exchange
of its own commodities and its own labor for the copper, say, of Spain,
or of the United States, or of Chili; and from any possible point of
view that is now conceivable it is only by the continuance of such a
system that the deficiency of particular articles in particular
countries can be supplied.
All that we can say is, in other words, that so long as the people in a
particular country are able to produce enough of something that the
rest of the world needs, so long will they be able to supply their own
necessities. And if in any country, in Labrador, for example, the
people are unable, because of the situation of the country, to produce
a sufficiency of consumable and exchangeable commodities, the
inevitable result will be the evacuation of that country by civilized
human beings. If such a result could be changed by conquest, the
change would be only temporary. To attempt to change it by agreement
would be to attempt a sort of international charity by means of which
{41} people would be able to live in Labrador by the use of part of the
surplus production, say, of Kentucky, given to them for nothing.
There is a very exaggerated notion in the minds of some as to the
effect of what is called "control of raw materials."
Of course, in time of war, control of raw materials _has_ importance.
But this does not mean "control" in the sense of _ownership_ of foreign
supplies, as, _e. g._, British ownership of Persian oil fields or
American ownership of Bolivian tin mines. It means merely either (1)
the possession of adequate domestic supplies, or (2) safe and unimpeded
_access_ to foreign sources of supply, as, _e. g._, German access,
during the war, to Swedish iron ore. The military significance of raw
materials, aside from purely domestic supplies, is related to such
things as naval power, blockade, "freedom of the seas," "free transit,"
etc., rather than to national _ownership_ of sources of supplies.
_Access to the market_ is the important thing, although the question of
finance may be more difficult in respect of foreign supplies than of
domestic.
But in time of peace, the "control of raw materials" in the last
analysis means that the owners of those materials can do only two
things with them, use them or to sell them. This is perhaps most
obvious in the case of such raw materials as are perishable, but it is
true of all.
Take such a product as copper, for example. Some countries have copper
mines, others have none. But the ownership of a copper mine is of no
possible advantage unless the copper produced from that mine is
manufactured into something else or is sold. Of course temporarily a
mine owner may leave his ore in the ground or may store a supply of
copper above ground; but these are expedients to be resorted to only in
some time of over-production and impossible of continuance. If the
product of the mine is not either used or sold, its advantage is purely
a theoretical possibility of the future. It has no more value in
present reality than a bank note on a desert island.
The really important factor, as to raw materials, is _access to the
market_ on an _equal footing_.
{42}
In practice there are only two ways in which a State or its citizens
can be discriminated against, in time of peace, so far as the State's
access to supplies of raw materials is concerned. They are as follows:
(1) By discriminatory export duties, or similar duties. In practice
these are _not_ important.
(2) By discrimination in respect of prices, or similar matters, by
_monopolistic_ producers. To achieve this result it is necessary not
merely that one _State_ should have a "monopoly" of the supply of some
raw materials, but also that _within_ that State, the production and
sales of the raw materials should be in the hands of monopoly.
Further, the domestic monopolistic organization, must, in order that
discrimination should be an outcome of the situation, find it
_profitable_ (not merely "patriotic") to discriminate in favor of the
domestic market. There is _no_ important instance of such
discrimination.
Such conjunction of circumstances is one which is exceedingly unlikely
to occur. There is more chance that there will be discrimination _in
favor of_ the foreign buyer. In short, the matter is not one of great
practical importance, for
(1) a raw material supplied only by one State
and (2) controlled, _within_ the State, by a monopoly, which
also (3) finds it profitable to discriminate against foreign
buyers
is something to be found only in imagination.
I venture to say that there has never been a time in modern
civilization when the people of any country have been prevented by the
international situation from obtaining any raw material whatever for
which they had the capacity to pay. The only possible exception to
this statement has been in time of war[15]; and the only possible
change in the situation in time of peace would, as I have suggested,
amount to some form of compulsory international charity.
{43}
If we look generally at this question of the _status quo_ from the
international point of view during the past two centuries, we find two
divergent and irreconcilable lines of treatment.
The jurists and the writers have generally considered that the _status
quo_ is or ought to be sacred from the point of view of outside
attack.[16] In most of the books the question is treated under the
heading of "Intervention" and, perhaps with some qualifications, the
writers do not admit the legality of intervention. They make
exceptions on the ground of self preservation of the intervening State,
sometimes on the ground of protection of human life and so on. But, at
least with these exceptions, they generally maintain that the State
against which the intervention is directed may legally object to
it--that is, may legally insist upon the maintenance of the _status
quo_ (or of its right, in a proper case, to change the _status
quo_[17]) and furthermore that such a State might justly, if able (as
it usually is not), resort to war against the intervention.
On the other hand, the history of international affairs during this
period is quite to the contrary.[18] Over and over again States,
sometimes individually, sometimes some of them collectively, have
interfered with the affairs of another State with which they Had
strictly no legal concern, on many different occasions and on all sorts
of pretexts. They have defended such intervention at times on the
vague grounds of the rights of humanity, the interests of commerce, the
restoration of order and so on.
Any one who is familiar, even in a cursory way, with the history of
Europe will be able to recall numerous such instances; and it must in
fairness be admitted that in some of them the result has seemed
beneficent.[19]
And it must not be forgotten that it is not only the wicked powers of
Europe that have acted along these lines. In reference {44} to the
affairs of other countries, though not its own, the United States has
maintained this privilege of paternal intervention by force. We
maintained it, for example, in Cuba in 1898, chiefly on the ground of
the sake of humanity.[20] In connection with the Panama Canal, Mr.
Root set up the famous proposition[21] that the sovereignty of Columbia
over the Isthmus was limited and qualified by the general right of
mankind to have a canal between the Atlantic and the Pacific, and to
have that canal kept open for the commerce of all.
Many other instances might be cited. It is, however, worth while to
recall in connection with this alleged limited right of sovereignty of
Columbia over part of its territory that the United States subsequently
paid $25,000,000 to the owner of the qualified fee.
It is perhaps unnecessary to add that this alleged right of
intervention, as between great powers, was recognized by another name
as a method of changing the _status quo_, namely, the method of war.
The effect of the Protocol is unquestionably to consecrate the
international _status quo_ with a definite position of legality, not to
be disturbed by force.[22] The views of the writers, as opposed to the
practice of Great Powers, have been adopted.
Article 2 of the Protocol forbids a resort to war[23] as against any
{45} other State, a party to the Protocol, "except in case of
resistance to acts of aggression."[24]
Under Article 8, every Signatory agrees to abstain from any act which
might constitute a threat of aggression.
Under these provisions and the provisions of the Protocol for the
settlement of international disputes, intervention to upset the _status
quo_ (or to prevent a state from changing it where it legally may)
becomes aggression and is an international crime.
[1] Such as discovery, occupation of _terra nullius_, etc. See the
Treaty of Spitzbergen, A. J. I. L., Vol. XVIII, p. 109.
[2] A. J. I. L., Vol. XI, at p. 626.
[3] A.J. I. L, Vol. XI, Supp. 1917, p. 53.
[4] Some regions of Asia may be exceptions.
[5] See the Franco-Swiss Free Zones, by Louis Schulthess, in Foreign
Affairs, Vol. 3, No. 2, p. 331, with map.
[6] "Et il faut bien remarquer, que la Guerre ne décide pas la
question; la Victoire contraint seulement le vaincu à donner les mains
au Traité qui termine le différend. C'est une erreur non moins absurde
que funeste, de dire, que la Guerre doit décider les Controverses entre
ceux qui, comme les Nations, ne reconnoissent point de Juge." Vattel,
Book III, Section 38.
[7] In general, this is the theory of Article Ten of the Covenant.
[8] See the Genesis of the War, Asquith, pp. 97, 98.
[9] Article 15.
[10] President Wilson's so-called first draft of the Covenant contained
a provision along these lines in Article III. See Woodrow Wilson and
World Settlement, Baker, Vol. III, p. 89.
[11] The statistics of language, etc., even when accurate, do not
always forecast the popular wish. Upper Silesia is an instance of this
fact. The statistics, as stated in the note of Clemenceau of June 16,
1919, showed 1,250,000 Poles and 650,000 Germans. The vote was 717,122
for Germany and 483,514 for Poland.
[12] The Convention between Germany and Poland relating to the régime
of Upper Silesia is a document of some 300 pages.
[13] I am greatly indebted to Professor A. A. Young for some of my
economic information; but he is in no way responsible for any of my
conclusions.
[14] Of course this is an over-statement. Germany produces about
one-tenth of her consumption of copper.
[15] Or a period due to war, such as 1919-1920.
[16] See Hall, International Law (Seventh Edition), Chapter VIII, for
an illuminating discussion.
[17] Such as the right of State A to cede territory to State B,
notwithstanding the objection of State C to such a cession.
[18] See Moore's Digest, Vol. VI, pp. 2-367.
[19] Such as the intervention in Greece in 1827 by Great Britain,
France and Russia. See Hertslet's Map of Europe by Treaty, Vol. I, p.
769.
[20] See the Message of President McKinley, April 11, 1898, Foreign
Relations, 1898, p. 750 at p. 757.
[21] The Ethics of the Panama Question, Sen. Doc. 471, 63rd Congress,
2nd Session, p. 39.
[22] There is a reference to the _status quo_ in the General Report
(Annex C, p. 181), which uses this language:
"There is a third class of disputes to which the new system of
pacific settlement can also not be applied. These are disputes
which aim at revising treaties and international acts in force,
or which seek to jeopardise the existing territorial integrity
of signatory States. The proposal was made to include these
exceptions in the Protocol, but the two Committees were unanimous
in considering that, both from the legal and from the political
point of view, the impossibility of applying compulsory
arbitration to such cases was so obvious that it was quite
superfluous to make them the subject of a special provision.
It was thought sufficient to mention them in this report."
[23] For the view that this includes acts of force, even in the absence
of a state of war, see _infra_, p. 55.
[24] The other exception "when acting in agreement with the Council,"
etc., is not here material. It is discussed _infra_, p. 50.
{46}
CHAPTER VIII.
DOMESTIC QUESTIONS.
The treatment in the Protocol of so-called domestic questions aroused a
great deal of discussion not only at the Assembly, last September, but
since the adoption there of the text.
It may be remembered that there was a similar public discussion at the
time of the drafting of the Covenant; in that document[1] a domestic
question is defined as "a matter which by international law is solely
within the domestic jurisdiction" of a State.
Among instances of domestic questions which have been mentioned from
time to time, perhaps the two most commonly referred to in this country
are the tariff and immigration. Of course it has been pointed out very
often that even such questions as these, however inherently domestic,
may become international as soon as they are made the subject of a
treaty, as they so frequently are. It should be added that almost any
question, no matter how "domestic" in its nature originally, _may_
become the subject of international cognizance by virtue of a treaty.
There are many treaties of the United States which have related to such
questions as the inheritance of land, the right to administer the
estates of decedents, etc.; a very recent instance is a treaty between
this country and Canada regarding the protection of migratory birds, a
treaty which has been upheld as valid by the Supreme Court.[2]
None the less, the absolute right of a country to regulate these
matters in its own discretion must be recognized as a matter of strict
law. Any country, in the absence of treaty, may, at its pleasure,
exclude foreigners from entering into its territory, for example. I
think no one questions this.[3]
However, as a matter of fact and as a result of the development of the
world's commerce, there is hardly any such question which remains
exclusively domestic. For example, even in our {47} drastic
Immigration Law of 1924,[4] there are various treaty rights of entry
into the country for the purposes of commerce and so on which are
expressly and in terms saved by the statute. Furthermore, there is, I
suppose, hardly a country in the world which does not have various
most-favored-nation treaties which directly affect tariffs.
Again, modern developments necessitate the extension of international
discussions and agreements to matters previously undreamed of; the
erection of wireless stations near frontiers is a very practical
instance; there must be some kind of agreement to prevent jamming in
the air. The negotiations about the opium traffic have gone to the
length of discussions as to what areas in certain regions should be
planted with the poppy; a more essentially domestic question than the
crops to be grown within a country could hardly be imagined.
In my opinion, the Protocol follows the Covenant in its treatment of
these domestic questions and goes no farther. The Covenant provides
that if, upon reference to the Council, it is found that a dispute
arises "out of a matter which by international law is solely within the
domestic jurisdiction," the Council shall report to that effect and
shall not even make a recommendation as to its settlement (Article 15,
paragraph 8). In practice the Council will doubtless refer this
question of law to the Permanent Court for an advisory opinion.[5]
The Protocol (Article 5, paragraphs 1 and 2) continues this provision
and applies it also to any arbitration which takes place by its terms.
It is provided that if one of the parties to the dispute claims that
the dispute "or part thereof" arises out of a domestic question, the
arbitrators must take the advice of the Permanent Court on the point.
The opinion of the Permanent Court is binding on the arbitrators and if
the Court holds that the matter is "domestic," the power of the
arbitrators to decide {48} the question is at an end and they are
confined merely to recording the Court's opinion.
The further provision of Article 5 on this question is the last
paragraph of that Article, which reads as follows:[6]
"If the question is held by the Court or by the Council
to be a matter solely within the domestic jurisdiction of
the State, this decision shall not prevent consideration of
the situation by the Council or by the Assembly under
Article 11 of the Covenant."
So far as this provision goes, I do not think that it adds anything to
the effect of Article 11 of the Covenant. The matter would stand
precisely where it does now, even if this last paragraph of Article 5
of the Protocol had been omitted.
Under Article 11 of the Covenant, both the Council and the Assembly
have the right to consider any circumstance which threatens to disturb
international peace. This does not mean any right of decision or even
recommendation in any binding sense. What it does is to give to the
Council or to the Assembly the privilege of attempting, by friendly
offices, to avert war.
To my mind there is nothing very new in this; indeed, it is rather
inherent in the idea of any international association for the
prevention of war. After all, there is no doubt that these so-called
domestic questions have their international repercussions. The case
that was put by way of argument at Geneva was the control of the
quinine of the world by the Dutch, which is said to be practically
absolute. What would happen if the Dutch put an embargo upon the
exportation of this drug? It would be idle to say that such an act,
legal as it would be in the strict sense, would not have a profound
effect upon civilization generally. Under Article 11,[7] such an act
could be discussed before the Council with a representative of the
Dutch Government present, in an effort to obtain some adjustment, some
change in what had been done; but that would be all.
In 1898, the United States went to war with Spain over what {49} was,
technically at least, from the point of view of Spain, a domestic
question, namely, the internal situation in Cuba. Shortly before
hostilities broke out, the six then Great Powers of Europe addressed to
the United States a friendly note in the matter, to which this
Government replied.[8] In principle, I cannot see any difference
between such diplomatic correspondence and the discussion of the matter
by the Council of the League, a discussion to which presumably Spain
and not the United States would have been the party to object, for the
question was a Spanish domestic question of which we were complaining.
There are other aspects of the treatment by the Protocol of domestic
questions, in connection with the Covenants against War, and with
Aggression, under which headings it will be discussed.[9]
[1] Article 15, paragraph 8.
[2] Missouri _v._ Holland, 252 U. S., 416.
[3] See Moore's Digest, Vol. IV, p. 67, _et seq._, also p. 151, _et
seq._
[4] Act of May 26, 1924.
[5] As in the case of the Tunis and Morocco nationality decrees,
Advisory Opinion No. 4, February 7, 1923.
[6] This is one part of the so-called Japanese Amendment, as to which
see _infra_, p. 64, _et seq._
[7] of the Covenant.
[8] Foreign Relations (U. S.), 1898, pp. 740-741.
[9] See _infra_, p. 50 and p. 54. Also "The Japanese Amendment," p. 64.
{50}
CHAPTER IX.
COVENANTS AGAINST WAR.
Under the Protocol, the agreement of the parties thereto (Article 2)
not to resort to war with one another is, if the terms of the Protocol
are carried out, absolute. The only stated exceptions in Article 2 of
the Protocol are (1) in case of resistance to acts of aggression and
(2) when acting in agreement with the Council or the Assembly under the
Covenant or the Protocol.
The first exception relates to defence and, if there be no aggression,
as there would not be if the Protocol is lived up to, there would never
be any need of defence against aggression.
The second exception, so far as it relates to a Party to the Protocol
against whom force might be used, relates primarily to an aggressor, as
defined in the Protocol. Of course this second exception in this
regard goes beyond the question of defence, strictly speaking, because
it would permit a State, not attacked, to go to the defence of another
State attacked if and when the application of the Sanctions of the
Protocol is called for by the Council[1]; but if the Parties to the
Protocol carry out their agreements as therein expressed, there could
never be any war between two or more of them.
There appears to be another possibility of the use of force within the
language of this second exception; this is the case where a State,
against which has gone a decision of the Court or an arbitral award,
fails to carry out the decision or award.
The provision of the Covenant regarding such a situation is contained
in Article 13, where it is said that the Council shall "propose what
steps should be taken to give effect" to such decision or award.
Obviously such proposals by the Council would not have any binding
effect upon the Members of the League.
However, under the Covenant, the State in whose favor the decision or
award had gone _might_ lawfully have resorted to war against the State
refusing to carry out the decision or award, {51} provided merely that
it delayed resort to war for three months thereafter, under the
language of Article 12 of the Covenant. In other words, if an award or
decision was made and a State refused to carry it out, the successful
party, under the Covenant agreed merely to refrain from war against the
defeated party for a period of three months.
The Protocol (Article 4(6)), as interpreted by the Report to the
Assembly, still permits the successful party to use force in such a
case but only when the Council authorizes the use of force, such
authorization being brought within the terms of Article 13 of the
Covenant.
It is true that the Council is first to exert its influence to secure
compliance with the decision or award and that, if the use of this
influence fails, the Council may then propose measures short of force
before authorizing the use of force itself.
Indeed, the Report[2] says that the Council may "institute[3] against
the recalcitrant party collective sanctions of an economic or financial
order." If this means that the Signatories to the Protocol are
obligated to employ such sanctions in such a case when called on by the
Council, I can only say that, in my opinion, the statement is not
warranted by any language of the Protocol or of the Covenant.
However, the final effect of these provisions is that with the
authorization of the Council the successful party _may_ use force to
execute a judicial decree or arbitral award.
Furthermore, the Report to the Assembly says that in such a case the
defeated party could not resist, and that, if it did resist, it would
become an aggressor against whom all the Sanctions of the Protocol
might be brought into play.
To see how this would work out, let us suppose that in an arbitration
between State A and State B, State A obtained an award to the effect
that State B should pay to it the sum of twenty million dollars.
Thereupon State B refuses to pay the award and, notwithstanding the
efforts of the Council, maintains that {52} refusal, thereby violating
its agreement in the Protocol (and in the Covenant also) to carry out
any such award.
Thereupon the Council authorizes State A to use force to collect the
money. It is no answer to this to say that the Council would not
authorize the use of force, for we are considering what may be done,
not what would be done. State A then begins to use force and, if State
B resists at all, the entire machinery of the Sanctions of the Protocol
can be brought into play and these include military and naval Sanctions.
Of course, such a result would be highly improbable, but I submit that
it ought to be legally impossible. The provisions of the Protocol in
this regard go very much farther than they ought to go, and very much
farther, in my opinion, than the States of the world are now willing to
go.
The case which I have supposed is one of a money judgment. A more
difficult case would be one where the award was for the recovery by
State A of certain territory in the possession of State B which State B
thereupon refused to give up. In such a case there is more to be said
for the use of force than in the other.
In any case, the refusal of a State to carry out the judicial decision
or the arbitral award after solemnly agreeing to do so is a very
serious breach of a treaty; but the idea of the authorization of force
to execute such a decision seems to me to present a question of the
very gravest character. My own view is against it. I am inclined to
think that the penalty of expulsion from the League under the fourth
paragraph of Article 16 of the Covenant should be the utmost
permissible.
Whether this view of mine be correct or not, certainly the countries of
the world are not going to accept any provision by which they will be
obligated in advance to join in measures to enforce the result of an
arbitration or of a litigation before the Permanent Court. Whether
they will agree to a provision permitting the successful party, so to
speak, to execute the decision or award on its own account is perhaps
doubtful; but certainly they will go no farther, if as far; and this is
one of the provisions {53} of the Protocol which will have to be
changed before the document becomes a reality.
Subject to the foregoing exceptions, the general covenant under Article
2 of the Protocol not to go to war is, in my opinion all inclusive. It
obviously includes all cases where there is a dispute of international
cognizance, for in such cases all parties agree upon a final and
binding method of decision and agree to carry out the decision. It
also includes, as pointed out previously,[4] all cases in which one
State would seek to change by force the _status quo_, or to prevent by
force a lawful change in the _status quo_.[5] Neither the lawful
maintenance of the _status quo_ nor its lawful change would come within
the general exceptions of Article 2.
Furthermore, the covenant against war in Article 2 would also exclude
the going to war about domestic questions. All that any Signatory
agrees to do regarding such a question, if, when raised
internationally, it is not settled by negotiation, is to discuss it
before the Council or the Assembly.[6] A State which did that would
have fulfilled all its obligations regardless of any action or inaction
as to the domestic question itself; and an attack made on it by any
other State would then be aggression under the terms of the Protocol.
There is no exception. As the Report to the Fifth Assembly says,[7]
"Our purpose was to make war impossible, to kill it, to annihilate it."
This, if lived up to by the Parties, the paper does, as among them.
The detailed provisions of Articles 7 to 10 inclusive of the Protocol
confirm the views above expressed. The provisions of these Articles
will be more specially considered in connection with the question of
Aggression.[8]
[1] See the discussion on this point, _infra_, p. 72, _et seq._
[2] Annex C, p. 180; see also pp. 168, 169.
[3] The word in the French text of the Report is "déclencher."
[4] p. 45.
[5] An instance of this would be if States A and B agreed on a cession
of territory from one to the other, to which State C objected.
[6] Under Article 11 of the Covenant.
[7] p. 208, _infra._
[8] p. 54, _et seq._
{54}
CHAPTER X.
AGGRESSION.
The preamble to the Protocol asserts that a war of aggression is an
international crime. I have discussed above[1] the agreement of the
parties to the Protocol not to resort to war except in defence against
aggression or in aid of defence against aggression or perhaps in
execution of a judicial decision or arbitral award. This is the
general covenant of Article 2 of the Protocol. It is this resort to
war, contrary to the terms of the Protocol, which is the chief breach
of the Protocol against which its chief Sanctions are ordered.
By Article 10 of the Protocol[2] every State which resorts to war in
violation of the undertakings either in the Covenant or in the
Protocol, is an aggressor.
It will be necessary to consider only the provisions of the Protocol
forbidding a resort to war, for it would be impossible to have a resort
to war contrary to the Covenant which would not also be a resort to war
contrary to the Protocol. The provisions of the Protocol go farther
than those of the Covenant in this regard.
It is true that there are in the Covenant certain engagements by
Members of the League not to resort to war. These are found in
Articles 12, 13 and 15; but it is unnecessary to consider them in
detail, for any resort to war contrary to the provisions of those
Articles of the Covenant would clearly also be contrary to the general
engagements of Article 2 of the Protocol.
The Report to the Assembly[3] seems to infer that a violation of the
obligation of Article 10 of the Covenant on the part of all Members of
the League to respect the territorial integrity and political
independence of other Members might be a resort to war not included in
the language of the Protocol; but I think that {55} any such forcible
violation would be within the terms of the Protocol also.
It is against the aggressor that the Sanctions of the Protocol are set
up and accordingly the provisions of the Protocol defining an aggressor
and the procedure for determining what State is an aggressor are of the
utmost consequence.
The definitions of an aggressor under the Protocol are complex in their
language though not in their fundamental idea, which is that aggression
is a resort to war instead of to arbitration.[4] The language of the
definitions is obscured by certain presumptions (Article 10) and by the
procedure laid down for the determination of an aggressor.
The general definition of an aggressor in the first paragraph of
Article 10 of the Protocol I have mentioned above. It is well,
however, to quote it in full:
"Every State which resorts to war in violation of the undertakings
contained in the Covenant or in the present Protocol is an
aggressor. Violation of the rules laid down for a demilitarized
zone shall be held equivalent to resort to war."
This is the general definition of principle. It relates back in its
meaning to Article 2 of the Protocol, the general engagement not to
resort to war. Beyond that, it makes the violation of the rules for an
agreed demilitarized zone the equivalent of a resort to war, the two
are assimilated.
The first question that arises regarding this general definition is
whether the words "resort to war" mean necessarily an actual and
technical state of war only, or whether they include all acts of
violence and force, even if such acts did not in a particular case
result in an actual state of war, because, for example, not resisted.
The view of the Report to the Assembly[5] in this matter is that such
acts of violence are included in the expression. I am {56} inclined to
agree with this view, though as a mere matter of language an argument
to the contrary is possible.
Suppose, however, that there is an actual state of war; how is it to be
determined which one of the two[6] belligerents is the aggressor?
The Protocol attempts to meet this difficulty by laying down two
different methods of determining the aggressor. One is by creating
certain presumptions, which I shall discuss later; the other is for the
case in which none of the presumptions is applicable.
In this case, that is to say, in the absence of the presumptions, it is
for the Council to determine the aggressor and, in order to come to
such a determination, the Council must act unanimously under the
general rule of Article 5 of the Covenant.
I have no doubt of this conclusion, which is the conclusion of the
Report to the Assembly. It is true that the language of Article 10 of
the Protocol is not as clear as it might be, since the duty and power
of the Council to determine the aggressor are not directly stated, but
rather to be inferred from the language.
What Article 10 of the Protocol says as to this in its last paragraph
but two[7] is that, apart from the cases when there is a presumption,
"if the Council does not at once succeed in determining the
aggressor, it shall be bound to enjoin upon the belligerents an
armistice, and shall fix the terms, acting, if need be, by a
two-thirds majority and shall supervise its execution."
{57}
So that in those cases where the presumptions hereafter considered do
not arise, it is the duty of the Council to determine the aggressor; it
must act unanimously in coming to such a determination; as the Report
to the Assembly says,
"Where there is no presumption, the Council has to declare the
fact of aggression; a decision is necessary and must be taken
unanimously";
and, if the Council is not unanimous, it _must_ enjoin an armistice
upon the belligerents.
Before coming to the procedure before the Council, I now enumerate
those cases in which, because of the existence of certain facts, a
State is "presumed" to be an aggressor; any such presumption can be
upset only by the _unanimous_ decision of the Council to the contrary.
These cases are as follows:
1. If hostilities have broken out and a State has refused to
submit the dispute to the procedure for pacific settlement
contemplated by the Protocol.
2. If hostilities have broken out and a State has refused to
comply with a decision, award, etc.
3. If hostilities have broken out and a State has disregarded a
determination that the matter in dispute is a domestic matter
_and_ has not submitted the question for discussion by the
Council or Assembly under Article 11 of the Covenant.
4. If hostilities have broken out and a State has violated the
provisional measures against mobilization, etc., contemplated
by Article 7 of the Protocol (and which will be mentioned
later).
Certainly the theory of the first three of the four instances above
mentioned is the theory stated by Herriot in his speech before the
Assembly that the State that refuses arbitration is an aggressor.[8]
In other words, law is substituted for force.
Now it is to be observed that in each of the four foregoing {58} cases
_hostilities must have broken out_ and in each one of them at least one
additional fact must have occurred.
In other words, given certain facts, there is a presumption as to the
aggressor; but who is to say, how it is to be determined, whether or
not at any particular moment these facts exist? It is not sufficient
to say that the facts will be open and notorious, for they might not
be. Indeed, if we look critically at each one of what I may call the
required facts, we find that doubt might arise.
Take the primary fact, which is always required for any presumption to
arise; this fact is that hostilities shall have broken out. One's
first impression might be that this could never be a matter of doubt;
but this is not so. Take the case of Corfu, for example. Italian
officers had been murdered in Greece by somebody; various individuals
had been killed at Corfu by a bombardment of the Italian fleet. Had or
had not hostilities broken out within the meaning of Article 10 of the
Protocol? Surely the point is at least debatable.
Take the next required fact, that a State has refused to submit a
dispute to the procedure for pacific settlement. It is very easy to
suppose cases where there would be a difference of view as to this. A
State might claim, for example, that the matter was a domestic question
which it did not have to submit to the procedure for pacific
settlement. There might be a difference of opinion as to whether or
not the matter had been actually decided by the tribunal. It is not at
all uncommon in municipal law for parties to disagree as to whether a
particular question is or is not _res judicata_; there have been many
litigations over this very point; and there have been international
arbitrations in which it was raised.[9]
Similarly, difference of opinion might exist as to whether or not a
State had disregarded a determination that the matter in dispute was
domestic or as to whether or not a State had {59} submitted a question
for discussion under Article 11 of the Covenant. Such differences of
opinion could easily arise because of the non-formulation in precise
terms of just what the dispute was. Parties do not always agree as to
what it is they are differing about and they may in fact be at the same
time differing as to more than one question. As to whether or not a
State had violated the provisional measures against mobilization
contemplated by Article 7 of the Protocol, that document itself
recognizes that such a question would require investigation, and in
such case and in such case only the Protocol gives the Council the
power to determine the question of fact, acting by a two-thirds
majority.
So we come back to the situation that a presumption as to the aggressor
can exist only if certain facts exist; and that the existence of one or
more of these facts may very likely be in doubt or dispute and that,
with one exception, there is no procedure for determining such
questions of fact so as to be able to say with certainty that the
presumption _does_ exist.
What is the answer to this difficulty? If we look at the matter
technically, we must conclude that none of the presumptions created by
Article 10 of the Protocol can ever arise unless the facts[10] were
admitted by the two[11] disputants. Such an admission would mean, in
other words, that one of the parties openly admitted that it was an
aggressor.
If the facts were in dispute or, in other words, if the existence of
the presumption was in dispute, the Council could not determine the
aggressor on the basis of a presumption requiring the unanimous vote of
the Council to upset it; but would be required to determine the
aggressor under the general provision which was first mentioned, under
which no presumption exists and when the Council is required by
affirmative unanimous vote to determine the aggressor.
Here again, however, there would unquestionably be disputed facts; that
is to say, unless one of the parties said that it was the aggressor, it
would require an elaborate investigation to {60} determine under the
language of Article 10 of the Protocol whether a State _had_ resorted
to war in violation of its undertaking, or _had_ violated the rules
laid down for a demilitarized zone. It is utterly impossible to
suppose that the Council could ever immediately determine the aggressor
under such circumstances by unanimous vote; and such determination
_must_ be immediate. The language of the text is: "at once"; and in
the French: "dans le plus bref délai."
Let us look at the matter concretely and take up the question of
procedure, supposing an actual case before the Council. There is a
crisis; hostilities have or are supposed to have broken out; there are
two States which either are or are thought to be at war; the Council
meets. Not only under the realities of the situation, but under the
express language of the Protocol, the Council must act instantly; the
peace of the world is at stake.
Now, under those circumstances, there could be only two situations.
One would be when some Great Power, either by open and announced
defiance or by its refusal even to meet with the Council, proclaimed
itself an aggressor. In that case of course neither the language of
Article 10 nor any other language would make any difference. The other
situation would be that the two States were there before the Council,
each claiming that the other was in the wrong, each disputing the
allegations of fact made by the other's representative. In such case
clearly no presumption could arise and in such case the Council could
not ever immediately determine the aggressor by unanimous vote. The
mere fact that it would require time to examine into the truth of the
respective allegations would prevent this. So the Council, by the
compelling facts of the situation and indeed in accordance with the
strictest construction of the Protocol, would be constrained to declare
and would declare an armistice.
Any dispute as to what State was guilty of aggression prior to that
time would be put over for subsequent adjustment; the armistice would
be laid down and would be obeyed. Of course, in theory, it could be
violated and the violator of the armistice {61} would become the
aggressor; but a State that was going to refuse or violate the
armistice, knowing the procedure, would doubtless not go to the Council
at all.
So, to my mind, the vital part of the procedure laid down by Article 10
for determining an aggressor is found in the provision giving the
Council the power immediately to declare an armistice; and, under the
procedure, this, in my judgment, is the only power that the Council
would ever exercise, except in the case suggested, in which a State
itself denounced itself as an aggressor.
I am aware that the framers of the Protocol are not in accord with
these views. In their opinion, the presumptions of Article 10
establish "an automatic procedure which would not necessarily be based
on a decision of the Council." They say that where a presumption has
arisen and is not unanimously rejected by the Council, "the facts
themselves decide who is an aggressor" and otherwise that "the Council
has to declare the fact of aggression."
I can only say that their conclusions, while perhaps admissible as a
mere matter of language and nothing but language, take no account of
the inevitable certainty that there will always be at least two views
of what the facts are; to put it from a legalistic viewpoint, tribunals
do not deal with facts; they deal with what lawyers call facts, but
which are merely conclusions based on such evidence as is available.
This sort of a "fact" is arrived at only after a hearing or a trial of
some kind; and to suppose that the Council could ever conduct such a
hearing, and at the same time come to a unanimous and immediate
conclusion is to suppose a contradiction in terms.[12]
So while from the language of Article 10 of the Protocol difficulty may
arise in determining an aggressor under its provisions (for there might
in any case be a disputed or doubtful question of fact; and the Council
under the provisions of the Covenant would in general have to act
unanimously) the Protocol provides a solution of any such difficulty by
saying that if the Council does not immediately determine the
aggressor, it _must_ {62} (the language is mandatory) proceed to enjoin
an armistice, to fix its terms and to supervise its execution, acting
for these purposes by two-thirds majority. Then the Protocol provides
that any belligerent which refuses the armistice or violates it shall
be the aggressor.
These provisions regarding an armistice seem to me to meet any possible
objection that might be raised to the absence of a more complete and
detailed system of determining in fact and in law what State is an
aggressor.
No matter what the presumptions were or even what procedure was laid
down, it is clear that, after hostilities in any given case had
actually commenced, there would be enormous difficulty for any tribunal
whatever in laying down conclusively which State was the aggressor.
After all, the vital thing is to prevent war; and the opening of
hostilities, to be immediately followed by an armistice, would not be
very much of a war. So I regard these provisions as to an armistice as
the most ingenious [Transcriber's note: ingenuous?] and, except its
statements of principle, the most important of all the provisions of
Article 10 of the Protocol.
The power given to the Council to formulate an armistice would be the
power exercised if hostilities broke out rather than the power of
adjudging the aggressor; unless the aggression was openly admitted,
which would mean that one of the parties to the Protocol really defied
the others; and, in that case, of course, it would defy the terms of an
armistice as well as any other terms. But in any other case a new
consideration would immediately arise. The Council would formulate an
armistice and in the absence of an open defiance by one State, or
possibly by a group of States, of all the others, the armistice would
introduce a new situation, a situation in which hostilities were _not_
going on; and human experience shows that, given an armistice, the
recommencement of hostilities on the old grounds is a real
impossibility.
In the view that I take, the Sanctions of the Protocol become less
important in the light of its provisions as to the determination of an
aggressor, for it is only against an aggressor that the {63} main
Sanctions of the Protocol can be brought into play; and these
provisions for determining the aggressor really mean that an aggressor
is a State or a combination of States which has finally and
deliberately determined to begin war and to carry it on regardless of
its most solemn engagements to the contrary. In other words, there
could be no war as between the parties to the Protocol without a
wilful, wanton and wicked disregard of its provisions.
[1] p. 50, _et seq._
[2] First paragraph.
[3] Annex C, p. 156 at p. 186.
[4] I use the word here in its largest sense.
[5] Annex C, p. 156 at p. 187.
[6] Of course there may be more than two.
[7] The reason why I have used in regard to Article 10 of the Protocol
this uncouth language, "its last paragraph but two," is that in the
English text of Article 10 there is a textual error which is extremely
confusing. Article 10 really consists of five paragraphs, and the
second of these five paragraphs has two sub-heads or sub-paragraphs
numbered 1 and 2. The third paragraph of Article 10, in referring to
these two sub-heads of the second paragraph calls them "paragraphs 1
and 2." In other words, the first words of what is here referred to as
the third paragraph of Article 10 (the paragraph which I call "the last
paragraph but two") read as follows: "Apart from the cases dealt with
in paragraphs 1 and 2 of the present Article." They should read
something like this: "Apart from the cases dealt with in sub-heads 1
and 2 of the second paragraph of the present article." Compare the
French text which is perfectly clear: "Hors les hypothèses visées aux
numeros 1 et 2 du présent article." See the English and French Texts
of Article 10 in full, _infra_, pp. 144, 145.
[8] September 5, 1924.
[9] _e. g._, the Pious Fund case reported in the Hague Arbitration
Cases, p. 1, and the Interest Case between Russia and Turkey, _op.
cit._, p. 260. These two cases are also in Stowell and Munro's
International Cases, Vol. I, p. 58, _et seq._
[10] I mean the facts from which the presumption as to the aggressor
would arise.
[11] I assume only two, for convenience.
[12] In the Dogger Bank case, the Commission of Inquiry sat for more
than two months. Hague Court Reports, Scott, p. 403.
{64}
CHAPTER XI.
THE JAPANESE AMENDMENT.
During the framing of the Protocol of Geneva by the Committees of the
Fifth Assembly of the League of Nations, the language of the document
was changed by what has been called the Japanese Amendment; and while
the provisions which constitute that amendment as part of the Protocol
have been generally considered in the previous discussion in connection
with the application of various Articles, still that amendment attained
such prominence in the discussions in the Fifth Assembly and since,
that it may well be separately reviewed.
The Japanese Amendment related to domestic questions, questions within
the domestic jurisdiction of a State; and before coming to its terms,
it will be well to see what the situation as to these domestic
questions is under the Covenant, taken by itself.
The Covenant, as we have seen,[1] provided for the submission to the
Council of all disputes between Members of the League which were not
otherwise adjusted by some kind of agreement or by some kind of
Tribunal. In regard to those disputes submitted to the Council, the
eighth paragraph of Article 15 of the Covenant said that if one of the
parties claimed, and if the Council found, that the dispute related to
a question which by international law was entirely within the
jurisdiction of a State, the Council should so report and make not even
a recommendation regarding a settlement. In other words, if the
dispute related to a domestic question and one of the parties to the
dispute raised the point, the Council could not proceed at all to make
any recommendation which would bind the parties to the dispute or
either of them to anything whatever.
At the same time, under the Covenant, by Article 11, either the Council
or the Assembly might consider _any_ circumstance tending to threaten
or disturb international peace. The language in this regard is
general. It means no more than discussion and {65} suggestion, except
perhaps publicity; but under this language of Article 11, the parties
were left with their liberty of action in the matter; and indeed, under
the Covenant, the Members of the League entered into no commitment
against going to war in the case of a dispute about a domestic question.
So we may sum up the provisions of the Covenant as to a dispute
regarding a domestic question by saying that while such a dispute might
go to the Council,[2] still the Council,[2] if the point were raised,
could make no recommendation about it; but the Council (or the
Assembly) might take the matter into consideration as a subject of
discussion when it threatened peace, with the hope and duty to preserve
the peace if possible; but in regard to this the parties remained free
to act as they might themselves finally determine.
The Protocol of course, as we have also seen,[3] makes a great change
in this situation because it contains a general agreement by the
parties not to resort to war, an agreement which is applicable to
disputes about domestic questions to the same extent that it is
applicable to disputes about international questions; this general
agreement not to go to war includes all questions of both kinds.
Furthermore, the Protocol makes it very much more likely that disputes
between Members of the League will go for a hearing to a Committee of
Arbitrators than to the Council; we have seen[4] that the likelihood of
any dispute going to the Council under the new régime, for
consideration on the merits, is remote. The functions of the Council
regarding disputes are to some extent delegated to the Permanent Court
of International Justice, but even more largely to Committees of
Arbitrators agreed on or appointed _ad hoc_.
Now the Japanese amendment is not strictly a single amendment; it is in
two parts. The first part is the last (third) paragraph of Article 5
of the Protocol, reading as follows:
{66}
"If the question is held by the Court or by the Council to be a
matter solely within the domestic jurisdiction of the State, this
decision shall not prevent consideration of the situation by the
Council or by the Assembly under Article 11 of the Covenant."
We must bear in mind that by the second paragraph of Article 5, any
Committee of Arbitrators, in its consideration of a dispute is subject
to the same limitations concerning a dispute about a domestic question
as are provided for the Council. The method of so limiting the
Committee of Arbitrators is that the question of law is decided by the
Permanent Court of International Justice, and if that Court decides
that the question is domestic, the Committee of Arbitrators simply so
declares and proceeds no farther.
What the paragraph of Article 5 above quoted says is that although
neither the Council nor a Committee of Arbitrators may consider a
dispute regarding a domestic question if the point is raised, still
none the less the Council or the Assembly, under Article 11 of the
Covenant, may consider the situation in its bearing upon the peace of
the world. Now such consideration under Article 11 of the Covenant
would have been possible without this statement, so that, to my mind,
this portion of the Japanese amendment makes no change in that regard.
The paragraph does not change the legal situation at all, but simply
makes explicit what was otherwise implied.
The other portion of the Japanese Amendment is the clause which is
added to sub-head 1 of the second paragraph of Article 10, beginning
with the word "nevertheless."
In order to see just what this other portion of the Japanese Amendment
is, I cite here the second paragraph of Article 10 (omitting certain
phrases not here material) with the words of the Japanese Amendment
italicised:
"In the event of hostilities having broken out, any State shall
be presumed to be an aggressor, unless a decision of the Council,
which must be taken unanimously, shall otherwise declare:
{67}
1. If it * * * has disregarded a unanimous report of the Council,
a judicial sentence or an arbitral award recognizing that the
dispute between it and the other belligerent State arises out of
a matter which by international law is solely within the domestic
jurisdiction of the latter State; _nevertheless, in the last case
the State shall only be presumed to be an aggressor if it has not
previously submitted the question to the Council or the Assembly,
in accordance with Article 11 of the Covenant_."
The language of Article 10 of the Protocol is quite involved, I have
already discussed it at some length,[5] endeavoring to show that its
real effect differs greatly from the theory of its framers, a theory
borne out, perhaps, by the language of Article 10 considered as
language only. I sum up _that theory_ as follows:
Laying down the general principle that a State which resorts to war
contrary to the Covenant or to the Protocol is an aggressor, and
prescribing a general procedure by which it is for the Council to
decide, unanimously of course, whether such a violation has taken place
(and in the absence of such unanimous decision to declare an armistice)
none the less Article 10 limits or qualifies this general procedure by
enumerating certain classes of cases in which the facts would
_supposedly_ be so open, so notorious, so impossible to question, that
they would create a presumption as to the State which was the
aggressor; and such presumption could be upset only by unanimous vote
of the Council against it.
I repeat that this is the theory of MM. Benes and Politis; it is not
mine.
My own view, heretofore expressed, is that in no case could the
supposedly notorious facts create a presumption because there would
always be a difference of opinion as to those very facts themselves.
But proceeding on the other theory, and looking only at the language,
the presumptions are important; here it is necessary to refer to only
one of them.
{68}
This presumption arises when a State has "disregarded" a decision by
the Council, by the Court or by the Arbitrators following the Court,
that a dispute arises out of a domestic question _and has also not
submitted_[6] the question to the Council or the Assembly for
discussion, under Article 11 of the Covenant.
Before the Japanese amendment, the text was that the presumption arose
when a State "disregarded" such a decision to the effect that the
dispute arose out of a domestic question.
Now let us see what the difference between the two is, that is to say,
the difference between the text _prior_ to the Japanese amendment and
the text _with_ the Japanese amendment.
In either case the decision on the question of law has gone against the
complaining State. The proper tribunal has decided that the question
is a domestic question and that decision in either case is and remains
conclusive.
In either case, the State "disregarding" that decision and going to war
is an aggressor. We may see that this is so by supposing that the
entire original text as well as the text of this portion of the
Japanese amendment was stricken out.[7] Then, clearly, the State would
be an aggressor under Article 2 of the Protocol and under the first
paragraph of Article 10; and there is nothing either in the original
text that we are considering or in the Japanese addition thereto which
changes that conclusion.[8]
The difference then between the original text and the text with the
amendment is this: in the original text, a complaining State
disregarding such a binding decision as to the domestic character of
the question was _presumed_ an aggressor if it went {69} to war _either
before or after_ the consideration of the matter by the Council or the
Assembly under Article 11 of the Covenant. Under the text as amended,
such a State is _presumed_ to be an aggressor only if it resorts to war
_before_ such consideration under that Article 11.
In other words, the difference between the original and amended texts
would arise only in the following circumstances: State A brings a
dispute against State B before a tribunal (Council, Committee of
Arbitrators, etc.). The tribunal renders a binding decision that the
dispute arises out of a domestic question. The complaining State,
bound by that decision, then brings the matter before the Council or
the Assembly under Article 11 of the Covenant and no adjustment
results; thereupon the complaining State resorts to war.
Under those circumstances, in the original text, the State resorting to
war would be _presumed_ an aggressor, a presumption to be upset only by
the unanimous vote of the Council against it. Under the amended text,
the complaining State would be an aggressor, but there would be no
presumption; and the determination that it was an aggressor would come
on to be made by the Council, which would either have to vote
unanimously that the complaining State was an aggressor, or else
proclaim an armistice.
I confess that it is difficult to see why such a refined and subtle and
technical distinction about the presumption of aggression should be
made. If there is a binding decision by a tribunal that a dispute
arises out of a domestic question, surely a complaining State, under
the principles of the Protocol, is bound not to go to war, because it
is legally wrong in its claim and has been so adjudged. Just why a
State going to war under such circumstances should be _presumed_ to be
and be an aggressor if it goes to war _before_ a discussion of the
matter subsequent to the decision and not be _presumed_ to be an
aggressor but merely be an aggressor, if it goes to war _after_ such
discussion, is not logically to be explained.
However, the foregoing discussion resulting in such an {70} obscure and
technical distinction is, as I intimated, based solely on the language
of the Article and on the legalistic theory of its framers as to its
meaning and result. Earlier in my discussion,[9] I pointed out that I
do not agree with the conclusions of MM. Benes and Politis, for I do
not think that the presumptions laid down in Article 10 of the Protocol
would ever have any material bearing on the decision reached by the
Council. In other words, repeating in substance what I said before, I
believe that the power to declare an armistice is the only power under
Article 10 of the Protocol which the Council would ever exercise,
except in a case where a State itself denounced itself as an aggressor.
Furthermore, it seems to me that the very intricacies of the language
of Article 10 of the Protocol are themselves a very real indication
that my conclusion is correct.
As a matter of reality, I cannot see that the Japanese amendment in any
conceivable case would cause any difference in what would happen. We
must suppose that war has commenced, for unless there is a resort to
war, Article 10 of the Protocol is out of the picture entirely.
Assuming then a resort to war, there are, under Article 10, with all
its provisions and exceptions and presumptions, only two real
possibilities:
a. There is an open and admitted and defiant aggression.
b. There is a difference as to the facts and it follows that it is
not possible for the Council _at once_ to reach a unanimous
conclusion in the case; accordingly the Council declares an
armistice which each belligerent must accept or become an
aggressor.
What these two cases come to is obviously one of two alternatives,
namely, either some State is going on with its fighting, with its war,
regardless of the Council and regardless of the Protocol, or else there
is an armistice and the fighting stops. Under the first circumstance,
the provisions as to presumptions and as to the decisions of the
Council are alike of no {71} consequence; and, in the second case, the
war ends with an armistice as soon as it commences.
The drafting of Article 10 of the Protocol is unfortunately obscure;
but when the language of the whole Japanese amendment is carefully
looked at, it seems to me that it certainly adds nothing to the powers
of either the Council or the Assembly in considering disputes arising
from domestic questions, and that the legal right of any State to
determine and control its own domestic matters remains unquestioned;
indeed, it may be said to remain more unquestioned than it is now; for,
under the Protocol, that right cannot be questioned by the League,
either in Council or in Assembly; it cannot be questioned by the
Permanent Court or by Arbitrators; and it cannot be questioned by war.
All that is possible is friendly discussion and consideration under
Article 11 of the Covenant and that, so far as Members of the League
are concerned, is possible now.
Of course it might be argued that the various possible decisions and
presumptions under Article 10 of the Protocol might make some
difference as to the charging of the costs of the aggression under
Article 15 of the Protocol; but the possibilities involved are too
remote to be worthy of discussion.
[1] _Supra_, p. 18, _et seq._
[2] or the Assembly.
[3] _Supra_, p. 50, _et seq._
[4] _Supra_, p. 23, _et seq._
[5] pp. 54-63.
[6] The text says "previously." Presumably this means before
hostilities broke out. It might mean before the "disregard" of the
decision that the dispute was domestic. Precisely how a State could
"disregard" such a decision, except by resort to war, is not very
clear. The French is "qui aura passé outre à un rapport," etc.
[7] That is, all the text above quoted as part of sub-head 1 of the
second paragraph of Article 10, beginning "has disregarded a unanimous
report of the Council."
[8] The Japanese proposal regarding this Article as it first stood, was
to strike out all the words referring to the "domestic jurisdiction,"
etc.; the addition of the clause commencing "nevertheless" was a
compromise; it would have been a much simpler result and a better one,
I think, to have omitted the whole clause, as the Japanese proposed.
[9] pp. 61, 67.
{72}
CHAPTER XII.
SANCTIONS.
The Protocol of Geneva provides for sanctions or penalties for its
breach by a Signatory.
Before considering the main sanctions which are set up by the Protocol,
it may be mentioned that there are certain provisional measures which
may be taken which fall short of the chief sanctions.
Under Article 7, in the event of a dispute between Signatories they
agree, pending its settlement, not to increase their armaments, take
mobilization measures, etc., and the Council is given the right, upon
complaint being made, to make enquiries and investigations as to the
maintenance of these agreements, and to decide upon measures in regard
thereto, so as to end a threatening situation. Similar powers are
given to the Council under Article 8 concerning threats of aggression
or preparations for war, and in all these cases, the Council may act by
a two-thirds majority.
The preventive measures which the Council may take as to such
preliminary matters are not precisely defined. It is to be pointed
out, however, that a State violating the engagements of Article 7 or
Article 8 would not be an aggressor against which the main sanctions of
the Protocol could be directed, assuming that hostilities had not
broken out. Accordingly, the measures which could be "decided upon" by
the Council would perhaps be limited to those of warning, of advice and
of publicity; certainly they could not be measures of force; and in my
opinion, they could not go as far as sanctions of any kind, economic or
otherwise; the General Report[1] speaks of "the evacuation of
territories" as a possibly appropriate measure; this indicates that the
"measures" are to be "taken" by the State guilty of violation of the
agreements mentioned; _certainly_ there would be no obligation on the
part of any Signatory to take any steps against a violation of these
agreements of Articles 7 and 8; but the {73} language is very vague and
all doubt should be set at rest by changing it particularly as the
Council may decide by a two-thirds vote.
In considering the main sanctions provided by the Protocol, the first
point to be emphasized is that they cannot come into play until a state
of war, in the real sense, exists; hostilities must have broken out, so
that the world is confronted with fighting actually taking place. It
is true that there is a theoretical exception to this in the fact that
a violation of the rules of a demilitarized zone is equivalent to a
resort to war; but this exception is more apparent than real for the
violation of a demilitarized zone would be only a brief prelude to
hostilities.
The second condition precedent to the application of the sanctions is
the determination of the aggressor.[2] And in any case the
determination by the Council as to which State is the aggressor must
have taken place before the sanctions are to be applied.
This is laid down in the last paragraph of Article 10, which provides
that the Council shall "call upon" the Signatories to apply the
sanctions.[3] As the sanctions contemplated by the Protocol are _in
theory_ merely a development of the sanctions contemplated by Article
16 of the Covenant, it is interesting to note that this preliminary
calling by the Council upon the States to apply the sanctions
introduces a new system, at least a system which develops from the view
taken by the Assembly under Article 16 of the Covenant in 1921; for in
the elaborate resolutions then adopted,[4] it was stated, among other
things, that the Council was to give merely an "opinion" as to whether
there had been a breach of the Covenant by resort to war, but that it
was for each State to decide "for itself" whether or not its duty to
apply the sanctions provided by Article 16 of the Covenant had arisen.
{74}
The reason for this development is easy to see. Even though the
sanctions of the Protocol may in theory be the same as those of Article
16 of the Covenant, _they are applicable to a very different state of
facts_. The sanctions of Article 16 of the Covenant were to be applied
to any Member of the League which resorted to war in disregard of
certain provisions of the Covenant in Articles 12, 13 and 15, and the
difficulty of determining whether or not, in a given case, a resort to
war _was_ a violation of those other Articles of the Covenant was not
solved, particularly as the Covenant does not preclude a resort to war
in _every_ case. Under the Protocol, however, every resort to war by
the parties to it is forbidden (except by way of defense or in aid of
defense or perhaps in execution of a judgment of some tribunal), and a
procedure which, in theory at least and probably in practice, would
always determine the aggressor, is provided. For if my view is
correct, an "aggressor" is a State which openly and wilfully defies the
other Signatories when summoned by the Council under Article 10 of the
Protocol. Consequently, it is now for the Council, upon the
determination of the aggressor, to call for the application of the
sanctions.
Of course, in all cases of a serious decision such as this would be,
the Council is not an outside body "calling" upon Governments to do
something. The words used lead one almost unconsciously to visualize
the Council as a sort of entity like a Court, laying down a rule of
conduct for some one; but this is a false vision; for in any such case
the Council is a group of representatives of Governments agreeing, in
the first instance, as such representatives of their own Governments,
upon a course of action to be taken by those very Governments pursuant
to a treaty obligation. We must think of any such action by the
Council as meaning primarily that the British representative and the
French representative, and so on, agree that the respective countries
which they represent will follow a certain course of action in accord.
If the Council were composed of all the Members of the League, it would
be proper to describe its action under such a provision as this as
being a conference of the parties to the {75} treaty to decide as to
what, if anything, those parties should do, and to come to such
decision unanimously, if any decision is to be reached. It is only as
to the Governments which are not represented on the Council that the
Council "calls" for action; so far as the Governments represented on
the Council are concerned, what they do is to _agree_ upon a course of
action.
In theory, as I have said, the sanctions of the Protocol are no more
than a development of those of Article 16 of the Covenant. The
language of the Protocol indeed, in Article 11, incorporates the
provisions of Article 16 of the Covenant by reference.
No provisions of the Covenant have been more debated since it was
written than those of Article 16. In 1921, various amendments to this
Article of the Covenant were proposed, none of which has gone into
force; and, as mentioned above, the Assembly then adopted various
interpretative resolutions regarding Article 16 which, with the
proposed amendments (one of which was textually modified in 1924), are
_provisionally_ in force.[5]
It is unnecessary to attempt any detailed consideration of the exact
legal effect of Article 16 of the Covenant at the present time in view
of these interpretative resolutions and proposed amendments; in general
they are intended to make the system of the economic blockade more
flexible in its application so far as may be consistent with the
purpose of the first paragraph of Article 16 of the Covenant, namely,
to institute a complete economic and financial boycott of an aggressor.
This first paragraph of Article 16 of the Covenant says also that the
aggressor shall _ipso facto_ be deemed to have committed an act of war
against the other Members of the League; this provision does not create
a state of war; it simply gives the other Members of the League the
right to consider themselves at war with the aggressor if they see fit;
this provision is supplemented by the language of Article 10 of the
Protocol which gives to any signatory State called upon to apply
sanctions the privilege of exercising the rights of a belligerent, if
it chooses.
{76}
Paragraph 2 of Article 16 of the Covenant made it the duty of the
Council to "recommend" to the various governments what armed forces
they should severally contribute for use in protecting the covenants of
the League.
Now what Article 11 of the Protocol does in its first paragraph is to
say that the obligations of all States in regard to the sanctions
mentioned in paragraphs 1 and 2 of Article 16 of the Covenant will,
when the call for the application of the sanctions is made by the
Council, immediately become operative, in order that such sanctions may
forthwith be employed against the aggressor.
So far as the first paragraph of Article 16 of the Covenant is
concerned--the economic and financial blockade--I do not see that this
first paragraph of Article 11 of the Protocol adds anything to that
first paragraph of Article 16 of the Covenant, even when the former is
read in connection with the second paragraph of Article 11 of the
Protocol.
It is true that in the resolutions about the economic weapon in the
Assembly of 1921, it was recognized that from practical points of view
the application of the economic pressure cannot be made equally by all
countries. But undoubtedly, subject to the practical difficulties
mentioned, a definite obligation exists in Article 16 of the Covenant
to impose economic sanctions against the aggressor, and, as I said, in
my judgment this obligation is not changed by the Protocol; but it can
now become an operative obligation only if and when the Council says so.
The vital question regarding sanctions under the Protocol arises under
the second paragraph of Article 16 of the Covenant in connection with
the first and second paragraphs of Article 11 of the Protocol. Indeed,
it is because of this second paragraph of Article 11 of the Protocol
that the question regarding the use of the British Fleet has been
raised in England.
Article 16, paragraph 2 of the Covenant reads as follows:
"It shall be the duty of the Council in such case to recommend
to the several Governments concerned what effective naval,
military or air force the Members of the League shall severally
{77}
contribute to the armed forces to be used to protect the
covenants of the League."
Article 11, paragraphs 1 and 2 of the Protocol read as follows:
"As soon as the Council has called upon the signatory States to
apply sanctions, as provided in the last paragraph of Article
10 of the present Protocol, the obligations of the said States,
in regard to the sanctions of all kinds mentioned in paragraphs
1 and 2 of Article 16 of the Covenant, will immediately become
operative in order that such sanctions may forthwith be employed
against the aggressor.
"Those obligations shall be interpreted as obliging each of the
signatory States to co-operate loyally and effectively in support
of the Covenant of the League of Nations, and in resistance to
any act of aggression, in the degree which its geographical
position and its particular situation as regards armaments allow."
On its face, paragraph 2 of Article 11 of the Protocol merely
interprets paragraph 2 of Article 16 of the Covenant; but
unquestionably _it greatly changes it_. Under the provisions mentioned
of the Covenant, the Council had merely the duty of recommendation as
to forces to be contributed by Members of the League. Undoubtedly
under Article 16 of the Covenant, paragraph 1, any Member of the League
had the right, if it chose, to consider itself at war with an
aggressor, but equally under that paragraph any Member of the League
had the right, if it chose, _not_ to consider itself at war with an
aggressor. Consequently there was no duty whatever under that Article
16, not even a moral duty, in my judgment, on the part of any Member of
the League to contribute any armed forces whatever. The Council had
the duty (under Article 16, Paragraph 2, of the Covenant) of making a
recommendation; but it was merely a recommendation, and there was no
obligation of the Member of the League to which the recommendation
applied; there was merely a possible privilege to the Member of the
League to which the recommendation applied--and that is a very
different thing.
Now, let us look at paragraph 2 of Article 11 of the Protocol, quoted
above. Each signatory State is "to cooperate loyally and {78}
effectively" not only "in support of the Covenant," but "in resistance
to any act of aggression." Well, certainly resistance to an act of
aggression means force and this fact is not qualified but emphasized by
the words: "in the degree which its geographical position and its
situation as regards armaments allow." I grant that these words have a
qualifying effect in some cases. They would mean, for example, that if
Denmark had no army, she could not be under any obligation to use
infantry. But they also refer to the other side of that picture, that
the British do have a navy, that is their particular situation as
regards armaments, a very particular situation; and under this Article,
as I read it, the British would be bound "loyally and effectively" to
cooperate in resistance to an act of aggression in the degree which
their particular naval situation allowed.
Furthermore, paragraph 1 of Article 11 of the Protocol says that the
"obligations * * * in regard to the sanctions of all kinds mentioned"
not only in paragraph 1 but also in paragraph 2 of Article 16 of the
Covenant "will immediately become operative." This indicates that
there are military, naval and air sanctions to be employed and that the
parties to the Protocol are under obligations to employ them.
Now, it is no answer to this to say that as to the _extent_ of the
armed forces to be used, the signatory State has its own discretion;
and it is true that there would be no international command, there
would be no turning over of the forces of one country to the General
Staff of another or to an international Staff of all; however, even
that did not take place during the first three years of the World War,
except with specific detachments. So, for example, the British could
say that they would send five destroyers or ten cruisers under their
own Admiral, or the Grand Fleet if they chose; but clearly it would be
bad faith for them to say with this commitment that they would not send
even a gunboat.
I am entirely satisfied that these provisions greatly extend the
provisions of the Covenant; for the first time[6] there is {79}
introduced in the League system a definite military
commitment--definite in the sense that it is obligatory, and not in the
sense that it is defined as to extent of force.[7]
It may be argued that the first paragraph of Article 13 of the Protocol
looks somewhat the other way, but I do not think that it does. That
paragraph merely provides that the parties to the Protocol, if they see
fit, may give to the Council "undertakings"[8] as to the military
forces which they would use in applying the sanctions of the document.
There is no obligation to give any such undertaking; it is purely
optional with each State. Doubtless if such an undertaking was given
and accepted by the Council, the State giving it would at least not
have to do anything more in the way of military action than provided in
the undertaking; but as the giving of the undertaking is optional, the
fact of its not having been given would not, in my opinion, limit or
qualify the obligation "interpreted" in the second paragraph of Article
11 of the Protocol.
I point out here that the word "contingent" in the first paragraph of
Article 13 of the Protocol does not relate to the obligatory character
of the sanctions but to the necessary uncertainty as to the future
existence of the breach required for their applicability (see the
French text); and the debate in the Third Committee and more
particularly the Report unanimously adopted by the Assembly, in its
discussion of Article 11,[9] make it clear that the above
interpretation as to the military sanctions is correct; uniform in
obligation, they are flexible in application.
Consideration of the third paragraph of Article 11 of the Protocol in
connection with the third paragraph of Article 16 of the Covenant tends
to support the views already expressed. Without further elaboration, I
call particular attention to the last clause of the paragraph of the
Protocol mentioned and cite {80} the respective paragraphs of the two
documents in parallel columns:
_Paragraph 3 of Article 16 of _Paragraph 3 of Article 11 of
the Covenant._ the Protocol._
"The Members of the League "In accordance with paragraph
agree, further, that they will 3 of Article 16 of the
mutually support one another Covenant the signatory States
in the financial and economic give a joint and several
measures which are taken undertaking to come to the
under this Article, in order to assistance of the State attacked
minimize the loss and or threatened, and to give each
inconvenience resulting from the other mutual support by means
above measures, and that they of facilities and reciprocal
will mutually support one exchanges as regards the
another in resisting any special provision of raw materials and
measures aimed at one of their supplies of every kind, openings
number by the Covenant-breaking of credits, transport and transit,
State, and that they and for this purpose to take all
will take the necessary steps to measures in their power to
afford passage through their preserve the safety of
territory to the forces of any communications by land and by sea
of the Members of the League of the attacked or threatened
which are co-operating to State."
protect the covenants of the
League."
There are certain other provisions of the Protocol regarding sanctions
which should be mentioned at least for the sake of completeness.
It is the Council[10] which declares that sanctions are at an end and
that "normal conditions be re-established" (Article 14).
To the "extreme limit of its capacity," all costs of an aggression are
to be borne by the aggressor (Article 15). The language concerning the
extent of the liability involved is very sweeping, going much farther
than the categories of damage mentioned in Annex I of the Reparation
clauses of the Treaty of Versailles.
{81}
The plans to be drawn up by the council for the detailed application of
the economic and financial sanctions are to be "communicated" to the
Signatories--in other words, they are advisory, not binding (Article
12).
Here it should be said that the final words of this Article 12 mention
"the Members of the League and the other signatory States." These
words imply the possibility of States signatory to the Protocol which
are non-Members of the League. As pointed out above,[11] no such
possibility exists, in my opinion. Even if such a theoretic
possibility existed, it would be absurd to suppose that any State would
sign the Protocol, with obligations going beyond those of the Covenant,
while still being outside the privileges of the Covenant; however, the
question is of no special importance here.
The main sanctions of the Protocol, _as among the Parties to the
Protocol_, may be thus summed up: a war of aggression is an
international crime; a Signatory which either avows itself an aggressor
or refuses an armistice after hostilities have broken out, commits this
crime; and accordingly the other Signatories, upon the call of the
Council, unite in the defence of the Signatory which is not the
aggressor, according to their respective capacities; which means that
if and to the extent that they are able to do so, they contribute by
force to the defence against the aggression, as well as by economic and
financial measures.
But in view of the other agreements of the Protocol regarding pacific
settlement of disputes and its covenants against war, the chief
sanctions of the Protocol would never come into play against a
Signatory, unless that State finally decided to defy the public opinion
of the world and to make into a scrap of paper its own solemn written
pledge.
[1] Annex C, p. 156 at p. 196.
[2] If there were two parties to the conflict, either one or both might
be aggressor. See Article 11 of the Protocol.
[3] I think this means upon _all_ the Signatories. The system of the
Protocol is flexible as to the _extent_ to which the Sanctions are to
be applied by a particular signatory; but all Signatories come under
the same legal obligation.
[4] On October 4, 1921. Official Journal, October, 1921, Special
Supplement No. 6, p. 24.
[5] See League of Nations Official Journal, October, 1921, Special
Supplement No. 6, pp. 14-15, 24-26, also October, 1924, Special
Supplement No. 21, p. 9.
[6] Except as to the possibilities of Article 10 of the Covenant, as to
which see _infra_, p. 84, _et seq._
[7] The debates in the Third Committee of the Fifth Assembly are of
interest in this regard.
[8] The French is "engagements."
[9] Annex C, p. 156 at p. 197, _et seq._
[10] by unanimous vote.
[11] p. 10, _et seq._
{82}
CHAPTER XIII.
SEPARATE DEFENSIVE AGREEMENTS.
The general character of the Protocol of Geneva is such that separate
defensive agreements between the parties to it lose substantially all
of their former importance. The Protocol itself is, among other
things, a general defensive agreement; and under such an agreement,
faithfully lived up to, substantially the only part that could be
played by separate agreements would be to make more detailed and more
regional, perhaps, in their obligation and execution, the general
obligations binding all signatories.
The possibility of these separate defensive agreements is mentioned in
Article 13 of the Protocol. It is laid down that they must be public;
furthermore, action under them cannot take place until the Council "has
called upon the signatory States to apply sanctions." Finally, there
is a most significant provision which illustrates the relatively
unimportant character of such separate agreements under the
Protocol--any such agreement must remain open to all Members of the
League which desire to accede thereto.
This last mentioned provision takes away every possible idea that such
defensive agreements under the Protocol could be anything like the
former "defensive" alliances. Obviously, a defensive agreement which
is open to any Member of the League is merely a part of the general
agreement; particularly is this so when the performance of the
agreement depends and is conditioned upon the request of the Council.
Indeed, in view of the other provisions of the Protocol, it is very
difficult to see any substantial difference between these so-called
defensive agreements and the undertakings[1] which, by Article 13,
States which are signatory to the Protocol may voluntarily give to the
Council regarding the armed forces which might be used in the
application of the sanctions. I say that the {83} two things are
similar for this reason: if in a given case the Council decides that
the military sanctions are to be applied any Signatory is then
entitled, at least if it chooses, to use the whole of its armed forces
against the aggressor. This being so, the use of a specified portion
of these forces in any given case comes to just the same thing whether
it arises from the general agreement to apply sanctions or from a
particular undertaking with the Council or from a particular agreement
with another Signatory.
We may go to this length in thinking of these defensive agreements
hereafter; in view of the fact that they must be public that any Member
of the League may adhere to them and that they cannot be performed
until the Council of the League says so, there could be in such a paper
no effective provision which would go beyond the engagements under the
Protocol itself.
Article 13 of the Protocol says that these separate agreements may be
acceded to by any Member of the League of Nations. This language would
include a Member of the League which was not a signatory of the
Protocol. Under Article 13, it is only the States signatory to the
Protocol which may make separate agreements. The point is doubtless of
no real importance; but it cannot be intended that these separate
agreements, if any be made, shall be acceded to by States other than
those bound by the Protocol, for any such separate agreement would be
in reality a paper subsidiary to the Protocol.
[1] Whether these "undertakings" would have the same legal quality as a
treaty is at least doubtful.
{84}
CHAPTER XIV.
THE PROTOCOL AND ARTICLE TEN OF THE COVENANT.
It is to be remembered that in this portion of the discussion
consideration is given only to the relations _inter se_ of the
Signatories to the Protocol.
As among these States the famous Article 10 of the Covenant will have
lost all its significance.
Article 10 of the Covenant has two distinct aspects. The more
important of these is the undertaking by the Members of the League to
"preserve as against external aggression the territorial integrity and
existing political independence" of other Members. Because of these
guarantees Article 10 was objected to in this country and in Canada
chiefly for the reason that it might involve the use of armed force by
the guarantor States. The further idea that this use of armed force
would necessarily come into play upon a decision of the Council of the
League of Nations was largely fallacious and was practically removed by
the resolution of the Assembly regarding Article 10.[1]
The other side of these guarantees of Article 10, which has perhaps not
always been very well appreciated, is that the obligation of a
guarantor State under Article 10 _may_ be very limited indeed and may
even be nothing at all, even in the case of a wilful attack. Article
10 goes only to two things, territorial integrity and political
independence. If an aggressor State respects these two things it can
do otherwise what it chooses, so far as the guarantor States are
concerned. For example, under Article 10 alone _and taking nothing
else into consideration_, one State could attack another, destroy every
building in the country, blow up every mine, and lay waste every field,
and then retire, saying: The territorial integrity of the country
attacked is now preserved, and its remaining inhabitants retain their
full political independence. Under such circumstances, no guarantor
State under Article 10 of the Covenant of the League of Nations would
be obliged to do anything.
{85}
Now I say that under the Protocol any significance of Article 10, as
among the parties to the Protocol, has disappeared; clearly this is so.
Article 10, so to speak, waited, or at least might wait till the end of
the war.[2] If the aggressor State did not in the Treaty of Peace or
otherwise annex any territory and left the attacked State independent,
Article 10 did nothing at all.[3] But the Protocol commences to work
even before any war commences and certainly at its commencement; there
must be no attack.[4] It is not a question of the final result of the
attack; it is merely a question of the existence of the aggression; and
it is _then_ that all the other parties to the Protocol come to the
defence of the attacked State. The lesser Article 10 of the Covenant
is swallowed up in the greater Protocol.
The other aspect of Article 10 of the Covenant was the undertaking by
each Member of the League to _respect_ the territorial integrity and
political independence of the other Members. This, of course, is an
undertaking in regard only to the acts of the State giving it. Such a
self-denying clause would be implied in the Covenant if it were not
expressed and equally, of course, it is inherent in the Protocol.
Indeed, in the Protocol it was thought necessary to insert a provision
regarding the political independence and territorial integrity, not of
the attacked State but of the aggressor. All that is left now of
Article 10, so far as the signatories to the Protocol _inter se_ are
concerned, is to be found in the second paragraph of Article 15 of the
Protocol, which says that the territorial integrity and the political
independence of the aggressor State shall not be affected by the
application of the sanctions of the Protocol.
A development of the Covenant by which Article 10 becomes unimportant,
except as a measure of protection _for_ an aggressor, is perhaps the
most remarkable and unforeseen of all possible developments.
[1] September 25, 1923. Technically, the resolution was not adopted,
the vote not being unanimous, 29 in favor, one, Persia, opposed, and 22
absent or abstaining. League of Nations Official Journal, October,
1923, Special Supplement No. 11, p. 34.
[2] _i. e._, so far as the Guarantor States are concerned.
[3] In the debates of the First Committee of the Fourth Assembly it was
asserted that "no forcible invasion" is possible without a violation of
Article 10 of the Covenant; but in certain circumstances war is
permissible under the Covenant (Article 15, Paragraph 7); and with a
permissible war, there could be a permissible invasion. See Oppenheim,
3rd edition, Vol. 1, page 739.
[4] _i. e._, no aggression, in the sense intended by the Protocol.
{86}
CHAPTER XV.
THE PROTOCOL AS TO NON-SIGNATORIES.
At the beginning of this discussion[1] it was pointed out that upon the
coming into force of the Protocol, there would, in theory at least, and
from the point of view of its provisions, be three classes of Powers in
the world, to wit, the parties to the Protocol, the Members of the
League not parties to the Protocol and the non-Members of the League,
the last named of course being also not parties to the Protocol.
It should also be mentioned again that the possibility of this second
class of States, namely, the Members of the League not parties to the
Protocol, is a temporary possibility only. For certainly if the
Protocol comes finally into force, its provisions will in due course be
embodied in the Covenant, as indeed is contemplated by Article 1 of the
Protocol; and thereupon those Members of the League who have not
ratified the Protocol will either become parties to the amended
Covenant or will, under the provisions of Article 26 of the Covenant,
cease to be Members of the League.
However, temporarily, there will doubtless be certain Members of the
League of Nations who do not ratify the Protocol and the relation of
these States to others during this provisional period is to be
considered.
So far as concerns the relations _inter se_ of this temporary or
provisional class of States (those which remain Members of the League
without ratifying the Protocol) it may be said at once that these
relations, from this point of view, will continue to be governed by the
Covenant and by the Covenant alone. The Protocol does not make or
purport to make any change in this regard; so that, as among those
States, we might envisage during this temporary period the theoretic
possibility of a war not forbidden by the Covenant, just as we might
envisage the possibility, during that period, of a dispute among those
Powers remaining {87} unsettled. It is, I suppose, fair to add that
both of these speculations are here of juristic interest only.
Similarly, the relations of non-Members of the League _inter se_ will
continue, as they are now, to be governed neither by the Covenant nor
by the Protocol. These States would not have bound themselves by
either document and so far as concerns their relations with each other,
neither the Covenant nor the protocol attempts to regulate them.
The only provision of either document which has any bearing in this
regard is to be found in Article 17 of the Covenant, which says in
substance that in case of a dispute between States not Members of the
League, such non-Members shall be invited to become _ad hoc_ members
upon conditions laid down by the Council. If they refuse, the Council,
under the last paragraph of Article 17 of the Covenant, may take
measures toward the prevention of hostilities; but these measures would
be in the nature of good offices or mediation only and could be
accepted or rejected by the two non-Members of the League as they saw
fit; they could decline them wholly and go to war at their pleasure.
There is indeed one question which suggests itself to the mind under
Article 17 of the Covenant concerning a dispute between two non-Members
of the League. Suppose they should be both invited for the purpose of
settling the dispute to become members _ad hoc_, and one of them
accepted the invitation and the other refused, would the dispute then
be considered as being a dispute between a Member and a non-Member?
The real answer to this question probably is that on issuing the
invitation the Council would make it a condition that both parties to
the dispute should accept it. The legal answer as to the possibility
of the case supposed is a matter of some doubt. I incline to the view
that the invitation contemplated by Article 17 of the Covenant in a
case when the dispute is between two non-Members, is a joint invitation
and a joint invitation only. I do not think that it is intended that a
non-Member of the League may temporarily seek the protection and
guarantees of the Covenant against another non-Member.
{88}
However, the question is of interest only from the point of view of the
meaning of language; if the possibility should arise, it would
doubtless be taken care of by the Council.
Another and also comparatively unimportant point may be here noticed
and that is in regard to the relations between the signatories to the
Protocol and the Members of the League not signatory thereto, another
phase of the temporary situation heretofore considered. As to this, it
may be said very briefly that such relations would continue to be
governed wholly by the Covenant. The Members of the League which do
not ratify the Protocol could not during this temporary period be
regarded as being in any way affected by what, as to them, would be in
the nature of proposed amendments to the text of the Covenant itself.
These non-Signatories of the Protocol would therefore continue to look
only to the Covenant for the regulation of their relations with any
Member of the League. The Protocol does not contemplate a League
within a League; it simply contemplates, during this temporary phase, a
situation where certain Members of the League had assumed certain
obligations without any constraint or effect whatever upon such Members
as might not choose to assume them.
The really vital question is as to the effect of the Protocol and of
the Covenant upon non-Members of the League in their relations with
Signatories to the Protocol.
Even assuming that the plans now proposed for the admission of Germany
to the League are carried out, there will remain for a considerable
period two Great Powers, the United States and Russia, outside the
League; and there are two other States of occasional international
importance, the admission of which to the League is not, so far as I
know, presently contemplated, these being Mexico and Egypt.
Accordingly, the possible effect of the Covenant and the Protocol on
non-Members of the League is one of very great consequence. It is a
question which is being actively discussed in so far as it may have a
bearing on the relations between Great Britain and the United States.
{89}
It is unquestionably true that the Protocol may have a real effect on
non-Members of the League. Of course there is a legal formula which
correctly says that a treaty cannot bind States not parties thereto,
_res inter alios acta_; but even in the strictest legal sense this
formula is only part of the truth in international matters. Any one
who questions this will be convinced by reading Roxburgh's
International Conventions and Third States.[2] A treaty between State
A and State B may harm State C or it may benefit State C, as the Treaty
of Versailles benefited Denmark by the cession of Slesvig, though
Denmark was a neutral and not a party to the Treaty of Peace.[3]
Let us consider the matter first from the point of view of the
Covenant. There are sanctions which may be applied under the Covenant
and the application of these sanctions might affect a non-Member of the
League either because they were applied against that particular
non-Member or because they were applied against some other State.
It is rather curious that this question has not been very much
considered under the Covenant; interest in it has been greatly revived
by the Protocol; but the possible realities under the Covenant are, it
seems to me, _in some respects_ more important than those under the
Protocol alone.
In considering this question it is well to look at it from the concrete
point of view with a specific instance or example before us.
The sanctions of the Covenant[4] are an economic and financial
blockade. These sanctions may be applied either as against a Member of
the League which resorts to war contrary to the provisions of the
Covenant or they may be applied against a non-Member of the League
which resorts to war against a Member after refusing to settle its
dispute with that Member (Covenant, Article 17, paragraph 3).
Suppose at the time of the Corfu dispute, Italy had gone on {90} to war
against Greece, and the British had deemed it their duty to apply an
economic blockade against Italy.
Suppose another case; suppose that Russia attacked Poland and that the
British deemed it their duty to apply the economic blockade against
Russia. We are speaking here in both of these cases merely of the
provisions of the Covenant; and the question raised is what attitude
might the United States take in such a case as one of these.
I have suggested two instances for the reason that there is a slight
difference between them. That difference lies in the fact that in the
first instance supposed, Italy, as a Member of the League, would have
agreed to the application of the sanctions; they would have been
applied by the British as a result of Italy breaking her treaty. But
in the second instance, Russia never having agreed to the Covenant, the
sanctions would be applied by the British solely as a result of the
British agreement to apply them and not because of any legal breach by
Russia, however morally wrong her attack on Poland might be.
I do not think that the difference between the two supposed cases would
make any difference legally in the attitude that the United States
might take in the one case or the other. The blockade would arise from
the provisions of the Covenant in either case. To that document the
United States is not a party. In each case our correct legal position
would be that our international rights were not limited by the
agreement of others.
Accordingly, let us consider the case of the blockade of Russia by the
British, recalling that, under the hypothesis, Russia has attacked
Poland and that the economic and financial blockade of the first
paragraph of Article 16 of the Covenant has come into full force. Now,
so far as that blockade cut off relations between Great Britain and
Russia, it would be none of our business. But the language of Article
16 includes
"the prevention of all financial, commercial or personal
intercourse between the nationals (residents)[5] of the
Covenant-breaking State (Russia, under the hypothesis;
{91}
see Covenant, Article 17) and the nationals (residents) of
any other State, whether a Member of the League or not."
What this would mean would be that all intercourse between Russia and
the United States would be cut off by the British Fleet so far as they
could do it. The questions suggested are: Could the United States
protest; and would we protest?
The first question is a question of law. Would the United States have
the right under international law to object to such a blockade? As a
preliminary to the answer to this question, it must be pointed out that
a blockade of Russia by the British might result in two different
situations. Russia could undoubtedly regard such a blockade as being
war, and if she did, no other country, neither the United States nor
any other country, could then object to the blockade. The reason for
that is that, without going into the much debated question as to the
"legality" of war, under present international law it can at least be
said that a neutral may not object to the belligerent status of two
countries at war with each other. Of course a neutral may object to
the manner of carrying on the war, or to particular incidents during
the fighting; a neutral may protest that a particular blockade is not
binding because not effective, and so on; but these things are not
immediately important here. The important thing here is that if the
blockade resulted in war, we could not object to the fact of war and
its incidents.
On the other hand, a blockade _might_ continue merely as a blockade,
without the technical status of war arising. This is, I suppose, not
very likely in the case of the blockade of a Great Power, but still it
is legally possible under the terms of the Covenant.
The situation created would be new under international law. It would
have to be considered as arising wholly from treaty and consequently
not a situation binding on Third States, but as to them simply a
situation in which their rights were governed by the principles of
international law. Under these rules, the nearest approach to such a
situation is the so-called pacific blockade of the past.
{92}
In my view, which is the view of the vast majority of writers on the
question, Third States do not have to respect a pacific blockade. (See
Oppenheim, 3rd edition, Vol. II, page 56.) Accordingly, it seems to me
that the United States would be entitled to regard such a blockade as
not affecting her commerce with Russia.[6]
If the United States took such a position, as probably she would, the
practical value of such a blockade would be very largely diminished,
for I do not think there is any doubt that the Members of the League
would admit that the blockade only applied to such Third States outside
the League of Nations as might acquiesce in it.
Under the Protocol, precisely the same legal situation as to the
blockade of Russia exists as under the Covenant and the same
conclusions would follow. However, the probability of such a blockade
under the Protocol, without an actual state of war resulting, is much
less than under the Covenant. The Protocol provides definitely for
military sanctions and it can hardly be doubted, as a matter of
reality, that if the sanctions of the Protocol commenced to be applied
to a State in or out of the League and that State resisted, the result
would be war as between that resisting State and at least those of the
Members of the League, like Great Britain, that were taking a real part
in the application of the sanctions.
And, as pointed out above, the legal situation is much clearer in the
case of war than in the case of this economic and financial boycott of
the Covenant. It would be much "easier"[7] to go to war than it would
be to apply the economic and financial sanctions alone. The world has
gotten more or less used, in a legal sense, to the legalities and
illegalities of war; but there are no precedents as to the
corresponding situations[8] in such a {93} blockade as has been
suggested; and it is, above all, custom and general agreement that make
international law.
I may sum up my views on this point as follows:
If under either the Covenant or the Protocol, the economic sanctions
were applied either against a Member of the League or a non-Member of
the League and the application of these sanctions did not result in
war, the United States legally could, and very likely would, contend
that any resulting blockade was not applicable to the United States and
the commerce and intercourse of her residents; and this view would be
accepted by the Members of the League as being legally sound; and the
result of course would be that the practical effect of any such
blockade would be very much weakened.
However, if the application of the sanctions either of the Covenant or
of the Protocol resulted in war between the State against which the
sanctions were applied and the States applying them, the United States
could not object to that state of war, although of course it would have
its rights as a neutral in such a war as in any other war and these
neutral rights would not be affected by any provision of either the
Covenant or the Protocol.
The next consideration is the possible application of sanctions against
the United States. From the foregoing review of the provisions of the
Covenant and of the Protocol it is evident that such action against the
United States is possible from a theoretic point of view. It is,
however, important here to repeat that there is no possible sanction in
either paper against a non-Member of the League except after war breaks
out, a war which the non-Member of the League has commenced against a
Member or against a Signatory to the Protocol as the case may be. In
other words, the sanctions of either paper could only become operative
against the United States after the United States had gone to war
against a Member of the League.
Continuing the theoretic view of the matter, it would be idle to
discuss any difference between one kind of sanction and another in such
a case. If the United States went to war with State A, a Member of the
League, and any other State undertook to {94} apply economic or any
other sanctions on behalf of State A and against the United States, it
would here be regarded simply as an act of war, creating two or more
enemies instead of one.
Perhaps from the common sense outlook, such contingencies are not
worthy of discussion, for what they would mean if they happened would
be either that there was another world war, in which case the
provisions of no document would be very important, or else there would
be some kind of a minor war such as that between the United States and
Spain, in which the other Powers of the world would find some way of
keeping their hands off, regardless of legalistic arguments based on
the Covenant or on the Protocol or on both.
It may be suggested that in the foregoing discussion I have omitted any
thought of the possibility of war between the United States and Japan;
but I have kept that possibility in mind. Its theoretical
possibilities, so far as they might exist by reason of the United
States attacking Japan have been considered above.
Let us consider the opposite possibility, an attack by Japan on the
United States.
Suppose, then, that Japan attempted to raise before the League the
question of the treatment of her nationals by the United States; there
is no way in which such a question could be considered by the League
except under the vague general clauses of Article 11 of the Covenant;
all that the League could do, even in theory, would be to ask if the
United States cared to discuss the matter; and the United States would
presumably decline to take part in any such discussion. Further, it
may be supposed that the United States would not have the slightest
desire to commence a war in the matter as the United States is
satisfied with the situation as it is--it is Japan which is
dissatisfied. The United States would merely refuse to discuss a
question which it deemed domestic.
Suppose then that Japan went to the length of declaring war on the
United States for this cause. While immaterial from the point of view
of the United States, I cannot see that such a war would violate the
Covenant in its letter; of course it would {95} violate its spirit of
peace; but I do not think there is any specific provision of the
Covenant which, in terms, forbids it.
The Protocol in this regard goes farther in its language. The general
covenant not to resort to war in Article 2 includes such a resort to
war, not only against a signatory, but also against a State which
"accepts all the obligations hereinafter set out"; in other words,
against a sort of _ad hoc_ adherent to the Protocol (Article 16), but
we may assume that these last words would not include the United States.
The preamble asserts that a war of aggression constitutes a violation
of the solidarity of the members of the international community, and
also an international crime. Article 10 of the Protocol says that
every State which resorts to war in violation of the undertakings
contained in the present Protocol is an aggressor; and in Article 8 the
document goes to its greatest length, so far as non-Signatories are
concerned, by saying that the signatory States undertake to abstain
from any act which might constitute a threat of aggression against
another State. These last words "against another State" are the
important words, because they include every State in the world, not
only a Signatory. Furthermore, in that same Article 8 any Signatory
can bring to the notice of the Council its view that "another State" is
making preparations for war, which of course would include another
Signatory.
So it is perhaps arguable that under the Protocol an attack by a
Signatory against a State which is not a Signatory might be an
aggression and that the sanctions of the Protocol might be brought into
play in favor of the non-Signatory. If that view be correct, then, in
the case supposed, namely, an attack by Japan upon the United States,
it would seem that, if the matter were brought before the Council by
_any_ Signatory (as it undoubtedly would be) the Council _might_
declare Japan to be an aggressor under the Protocol; and it would then
become the duty of the other Signatories to apply against Japan all the
sanctions of the Protocol, at least unless the United States objected
to such a course and preferred to go it alone.
{96}
However, there is at least grave doubt as to all this. The provisions
of Article 16 of the Protocol and of Article 17 of the Covenant rather
indicate that a State which pays no attention to an invitation to
become an _ad hoc_ Member or Signatory takes its chances as they exist
_dehors_ the Covenant or the Protocol. I think myself that this is the
better view. To suppose otherwise would be to suppose that States
outside the League (or the Protocol) had all the advantages of States
within, and none of the burdens or obligations, a difficult thing to
envisage.
So, on the whole, I conclude that an attack by Japan upon the United
States because of a "domestic" or other question would permit the
Members of the League, both under the Covenant and under the Protocol,
to be interested onlookers and nothing more.
[1] _Supra_, p. 13.
[2] Longmans, Green & Co., 1917.
[3] A subsequent treaty between Denmark and the Principal Allied Powers
confirmed the cession. A. J. I. L. Supplement 1923, Vol. XVII, p. 42.
[4] Article 16.
[5] The discussions in the Assembly of Article 16 of the Covenant show
that the word "nationals" is to be read as "residents."
[6] See Moore's Digest, Vol. VII, pp. 135-142.
[7] That is, in the sense that there would to some extent be known and
applicable rules of conduct for all States.
[8] Innumerable questions of difficulty as to private contracts might
be suggested; but I am thinking here of relations between States.
{97}
CHAPTER XVI.
THE DISARMAMENT CONFERENCE.
Under Article 17 of the Protocol, a Disarmament Conference to which all
States of the world are to be invited is to meet at Geneva on June
15th, 1925. It is made the duty of the Council to draw up a general
programme for reduction and limitation of armaments to be laid before
the Conference and to be communicated to the various Governments not
later than March 15th, 1925. The provision to this effect says that
the Council shall give due regard to the undertakings of the Protocol
regarding sanctions, but the preparation of this general programme is
in substantial accord with Article 8 of the Covenant.
The Assembly adopted a quite elaborate resolution[1] regarding this
Conference. This resolution makes seven or eight suggestions in
general terms for the agenda of the Disarmament Conference. While the
resolution was adopted, it was pointed out in the discussion that the
Council has a perfectly free hand in the matter and that the requests
of the Assembly regarding the agenda were nothing more than requests.
There is perhaps no occasion to go over them in detail, but one or two
points may be mentioned.
The matter of demilitarized zones figures in this Assembly list. As
such zones are specifically mentioned in Articles 9 and 10 of the
Protocol there is no doubt that this is one of the questions that would
be on the agenda. Another suggestion of the Assembly for the agenda of
the Conference is "the control and investigation of armaments in the
contracting States." Such control and investigation were a part of the
so-called American Plan,[2] and in view of the fact that the control
and investigation of the armaments of the former enemy States are now
before the League, there can be no doubt that this matter also would be
on the agenda of the Disarmament Conference prepared by the Council.
{98}
It was pointed out previously[3] that the date of the Disarmament
Conference may be postponed. It now seems very likely that it will
be.[4] Indeed, I feel that there was a little too much optimism at
Geneva in fixing the date as early as June 15th, 1925, involving the
completion of a programme by March 15th.
Of course, in getting up a programme of general disarmament, and an
agenda for the Conference on Disarmament, it is true that the Council
would have available the advice of the Permanent Military Commission
and of the different bureaus of the Secretariat. Even so, the task of
finishing these preparations in three or four months, getting them
approved by the Council and also by at least the chief of the
interested Governments, is one that seems to me to be very doubtful of
accomplishment.
It is perhaps not generally understood what an amount of work and how
great a number of questions are involved in such discussions as are
proposed. There are something like twenty European Governments that
are vitally interested. Some of these Governments have quite different
points of view and all of them have their military, naval, air and
chemical programmes in force and subject to the control of their own
Parliaments.[4] The idea of a general reduction of armaments involves,
at least provisionally, the recasting of the entire military system of
Europe. It is complicated by numerous possibilities of regional
agreements which in themselves would create new problems of complexity.
Furthermore, it is not generally recognized that a great deal of the
work of such a Conference as this has to be done in advance. Doubtless
no Conference in plenary session ever drew up a paper; no Legislature
ever wrote a law. The utmost that any such body can do is to consider
concrete proposals drawn up often by one individual, but certainly
always by very small groups. I venture to say that ten lawyers could
hardly draw a {99} deed without appointing a sub-committee. The
success or failure of the Disarmament Conference will very largely
depend on the care and judgment used in the preparations for its
meeting.
We can look back on the Washington Conference and see the truth of some
of these observations there. That Conference dealt with only a portion
of the field of naval armaments, among only five powers, only three of
which had any substantial naval force. The naval staffs of the
countries particularly interested had to prepare in advance elaborate
studies, and yet with all this the Conference lasted nearly three
months. Certainly the task of a general conference on disarmament is
very much greater than that of the Washington Conference was.
It took nearly four months to draw up the Treaty of Versailles, which
is by far the most elaborate and complex international agreement ever
written. In the circumstances this was a remarkably short time. The
most serious detailed criticism that I have seen of the time involved
suggests that it might have been two or three weeks less. It is to be
remembered, however, that the Peace Conference worked at that time
under a perfectly enormous pressure from all sides to complete its
task, which, as a matter of fact, would never have been completed
within anything like the time taken if the decisions had not finally
been left to three or four men to take.
I need not dwell further on the difficulties of the details. Any one
who reads the Disarmament Treaty drawn up at the Washington Conference
will appreciate something of their nature; but, looking at the matter
from the larger point of view, there is a question of real
statesmanship involved. The possible field to be covered by a general
conference on disarmament cannot perhaps be limited; but the extent to
which the first discussion shall go will determine its success or
failure. If it attempts to go too far, that will be fatal; if, on the
other hand, the attempt is only to go a short distance now and to
continue on the road further later on, the Conference may be a success,
despite the fact that it will meet with the criticisms of those who
want to do everything at once.
{100}
The question of a permanent, or rather of a recurrent, Conference on
Disarmament, as proposed by the so-called American Plan,[6] is one that
is inevitably bound to come up at any such Conference, for whatever the
Conference does or whatever it tries to do, it will have to leave much
undone. Many questions will remain open, many changes of the future
will not be foreseen, and those who meet in the Conference will see
when they end their work that they have only begun it.
It is also to be noted again that the Conference is to fix the period
within which the plan of reduction which it adopts is to be carried
out. If within that time the plan is not carried out, the Council is
to make a declaration rendering the Protocol null and void. The
Conference is also to lay down the grounds on which the Council may
make such a declaration.
In other words, the Protocol itself is to depend wholly upon the work
of the Conference; it is to the Conference that the whole
responsibility is transferred. If the Conference does not adopt the
plan, and then if that plan is not carried out[7] within the time and
on the conditions that the Conference declares, the Protocol falls.
Never, I venture to say, has any important treaty ever been drawn up
depending upon a more impressive condition subsequent.
[1] See Annex D, p. 210 at p. 213, _et seq._
[2] Annex F, p. 263.
[3] p. 5.
[4] This was written before the meeting of the Council in Rome in
December, 1924. The Disarmament Conference certainly cannot meet
before 1926. The present situation of the preliminaries is stated in a
note to the Resolution of the Council of October 3, 1924, _infra_, p.
215.
[5] For a statement of existing European armaments, see note to page
100.
[6] Annex F, p. 263.
[7] See the discussion as to this, _supra_, p. 7, showing that the
"plan" will be another Treaty or Treaties and that the "carrying out"
probably means ratification thereof.
NOTE.--A statement of existing European Forces was made to Parliament
on June 18, 1924 (Hansard, Parliamentary Debates [Commons], N. S., Vol.
174, page 2151). It gave the following figures:
Great Britain ........ 155,935 Latvia ............... 20,000
Germany .............. 100,000 Lithuania ............ 15,000
Austria .............. 21,500 Poland ............... 250,000
Hungary .............. 35,000 Norway ............... 16,000
Jugo Slavia .......... 130,000 Sweden ............... 32,000
Rumania .............. 125,000 Denmark .............. 27,000
Czecho Slovakia ...... 149,877 Greece ............... 110,000
Netherlands .......... 163,262 Bulgaria ............. 20,000
Italy ................ 250,000 Turkey ............... 88,000
Switzerland .......... 500,000 France ............... 732,248
Soviet Union ......... 1,003,000 Belgium .............. 86,531
Finland .............. 30,000 Spain ................ 240,113
Esthonia ............. 16,000 Portugal ............. 40,000
Total armed forces in Europe, 1924 ........... 4,356,466
{101}
CHAPTER XVII.
DEMILITARIZED ZONES.
Emphasis is laid by the Protocol on the creation and maintenance of
demilitarized zones along frontiers. Article 9 of the Protocol treats
of such zones, and their violation is, by Article 10 made the
equivalent of a resort to war.
Any question of the real value, in the strict military sense, of
agreements for demilitarized zones, may be left at one side.
Undoubtedly, expert opinions differ in this matter. At least it may be
said that such agreements have a value in the realm of feeling, which
is as much a reality in international affairs as is a fleet of
battleships.
If countries feel more secure because of the creation of such zones,
certainly agreements regarding them are worth while on each side of a
frontier.
As mentioned above, the question of demilitarized zones will certainly
be one of the items of the agenda of the Conference on Disarmament.
There are quite a number of precedents for the creation of such zones
in recent international agreements. For example, the Treaty of
Versailles[1] creates a demilitarized zone for fifty kilometres east of
the Rhine. The Aaland Islands were demilitarized by the Treaty[2]
which attributed them to Finland; and the Treaty of Lausanne[3] creates
certain demilitarized zones, not only on each side of the Straits, but
also in Western Thrace.
It is such agreements as these that are referred to in Article 9 of the
Protocol as those "already existing under the terms of certain
treaties." It is these zones, and others which may be established by
consent of the neighboring States, which, according to Article 9, may
be placed under a system of supervision by the League, either temporary
or permanent. Obviously, any such supervision would come about by
means of the voluntary agreement of the States concerned; and, in view
of the fact that the Protocol makes a violation of a demilitarized zone
the {102} equivalent of a resort to war (Article 10), supervision by
the League of the carrying out of these essential agreements would seem
to be highly desirable.
Indeed, it may be said here that it will almost certainly be found that
a system of international inspection will inevitably be a part of
agreements for the reduction and limitation of armaments. A system of
general international inspection was suggested as one of the parts of
the so-called American Plan,[4] and the proposal for a system of
supervision of demilitarized zones under the League of Nations is a
part of that general idea.
I do not think it should be lost sight of that the thought of certain
places where violence is forbidden has roots which go far back in human
history. The idea of "sanctuary" is as old as any records that we
have; and, if it be thought that I am going very far afield in speaking
of sanctuary, I mention that the legal development of this general
notion is a very early development. At least as long ago as
Anglo-Saxon law in England, it was a peculiarly heinous offence to
commit a crime on the King's Highway. It was a much more serious
matter to break the peace there than elsewhere, because it was a breach
of the King's peace; and this notion of the King's peace is said by
high authority to be as old as the Salic Law.
We have heard much in the past of strategic frontiers. A great deal of
ability and learning have been devoted toward the problem of making
frontiers available for attack or for defence. It is perhaps true, as
some critics appear to think, that the development of war in the air
and of chemical warfare has made questions of strategic frontiers in
general less important than heretofore. Perhaps that is so. I
suggest, however, that even if it is so, that same ability and learning
may be able to find in a combination of the ideas of demilitarized
zones and international supervision a real solution of the problems
arising from these new methods and discoveries; and, as I have pointed
out, there is a very ancient human feeling behind this whole idea of
peaceful places, on which popular support for such a programme may be
based.
[1] Articles 42 to 44.
[2] A. J. I. L. Supplement 1923, Vol. XVII, p. 1.
[3] A. J. I. L., Vol. XVIII, January, 1924, pp. 58, 63.
[4] Annex F, p. 263.
{103}
CHAPTER XVIII.
SECURITY AND THE PROTOCOL.
For me to discuss the bearing of the Protocol of Geneva upon the
security of States means that I go outside my brief.
No technical juristic reasoning is applicable to a feeling which lies
at the heart of national sentiments, sentiments of patriotism and of
devotion to country, which are as deep rooted in the souls of millions
as are the love of family and the belief in religion.
This matter of security is in verity a matter of national feeling, a
state of mind in the truest sense. For no human agency, no belief, no
will, outside of the country concerned, can alter or affect it.
Ourselves alone must say, we and our rulers, whether or not we are in
fact secure--if we say yes, that is enough; but if we say no, it is not
for any one else to question, much less for any one else to seek to
argue the matter.
So I shall merely seek to state the theory of the Protocol in regard to
this matter of security. That theory is this: if the nations of the
world will agree to outlaw war, if they will agree to substitute law
for force, to settle by pacific means all disputes among them, if they
will agree to unite against any people which so agrees but then betrays
humanity by tearing up its own agreement, then we may develop
intra-nationally a belief in security, a confidence in a settled order,
a hope for the future, which will slowly but inevitably disarm the
forces for war and lift the curtain on a new day.
Such is the theory of the Protocol of Geneva.
{104}
CHAPTER XIX.
INTERPRETATION OF THE PROTOCOL.
Article 20 of the Protocol provides that any dispute as to its
interpretation shall be submitted to the Permanent Court of
International Justice. No provision similar to this is to be found in
the Covenant.
The importance of this provision does not consist chiefly in its
application to the Protocol. Even if and when the Protocol comes into
effect the provision in itself will not be very important, because the
Protocol is only a temporary document to be transformed into amendments
to the Covenant. If these amendments include the incorporation into
the Covenant of a similar provision to the effect that any dispute as
to its interpretation shall be submitted to the Permanent Court of
International Justice, such an amendment will be of supreme importance.
With the Protocol embodied in the Covenant, the latter document will be
by far the most important international treaty in existence. If all
questions of its interpretation are to be submitted to the Permanent
Court, that tribunal will have judicial powers of the most far-reaching
character.
It is true that the extension of the powers of the Court so that they
would include the interpretation of the Covenant is logical in so far
as it relates to the settlement of disputes between Members of the
League or other States; but the Covenant contains many other provisions
bearing only indirectly upon such disputes. The Covenant provides for
the Council and the Assembly and for their meetings, their powers and
procedure, powers which under Articles 11 and 19 of the Covenant, for
example, are expressed in the most general terms. The Covenant
provides for the mandate system for certain territories and for the
supervision by the League of numerous international agreements and
bureaus of all sorts. Now, in most of these matters the method of
interpreting the Covenant has been by consent. Members of the Council
or, as the case may be, of the Assembly agree on what {105} they may do
and proceed accordingly. If differences of view as to the
interpretation of the Covenant in this regard are to be submitted to
the Permanent Court, that tribunal would have in some respects a power
superior to that of either the Council or the Assembly.
Let me give an instance. The fifth paragraph of Article 4 of the
Covenant provides as follows:
"Any Member of the League not represented on the
Council shall be invited to send a Representative to sit as
a Member at any meeting of the Council during the
consideration of matters specially affecting the interest of
that Member of the League."
This paragraph gave rise to a difference of opinion as to what States
are entitled to sit on the Council when it considered questions arising
under Article 213 of the Treaty of Versailles and similar Articles in
the other Peace Treaties relating to the investigations by the Council
of the armaments of Germany and other countries. When the question
came up, the Council took the opinion of Jurists on it and reached a
common sense result.[1] Under a general clause giving jurisdiction to
the Court in all matters of interpretation,[2] it would seem that any
Member of the League could require a question as to the composition of
the Council on a particular occasion to be decided by the Court before
the Council could meet. It is obvious that any such method of
regulating procedure would give rise to impossibilities which should be
avoided.
[1] See League of Nations Official Journal, July, 1924, p. 922 and Cmd.
2287 (Miscellaneous No. 20, 1924), p. 16.
[2] Many people suppose that the Supreme Court of the United States has
such general powers regarding our Constitution, but this is not so.
Read, for example, Article I, Section 5 of the Constitution; and see
Massachusetts _v._ Melton, 262 U. S., 447.
{106}
CHAPTER XX.
THE "AMENDED" COVENANT.
I trust that no one appreciates better than myself that examination of
a document bit by bit and piece by piece tends to blind the vision.
One sees the trees and not the forest. Worse than that, one gets a
false vision, a picture, if I may change the metaphor, of the buttons
on the coat but not of the man wearing the coat and still less of the
soul within the man.
A critical examination of an international legal document leads to a
discussion of trivialities and to hypotheses of almost impossible
possibilities. Of course it is true that the carrying out of a great
international agreement in the light of the facts and conditions of
international life as they arise does not proceed along the technical
lines that I have followed, but rather along those lines of policy
which really control international action. I do not mean necessarily
selfish policy, but policy in the larger sense of decisions based upon
the best judgment of those in power for the time being.
What really ought to be done in studying any proposal such as the
Protocol of Geneva, is to realize, if possible, the ultimate purpose of
the document and to visualize, so far as we can, what would happen if
it came into force, not so much what _might_ happen under a particular
phrase, but how the international relations of the world would proceed
if the whole agreement were a reality.
I have mentioned more than once that the Protocol of Geneva
contemplates that its provisions shall form part of the Covenant; in
other words, that the two documents shall be amalgamated, forming an
amended Covenant. With the hope of facilitating a general view, I have
endeavored to put the two documents together in the form of an
"amended" Covenant, and the result of this effort is set out below.[1]
Looking at the text of this "amended" Covenant, one may observe that
while twenty of the present twenty-six Articles {107} remain unchanged
in form, Articles 12 to 17, inclusive, are expanded and somewhat
rewritten; and eight Articles are added; and I do not think that the
text of the "amended" Covenant could be phrased in much less language
than it appears below.
Of course the length of a document in itself is not of much
consequence; but it is not unimportant to observe that the "amended"
Covenant is very much longer than the Covenant as it now reads. This
fact, I say, is important, because it is the visible evidence of a
reality. The Protocol of Geneva is not a mere completion of the
provisions of the Covenant. Advocates of the Protocol make a very
serious mistake when they erroneously say that the Protocol of Geneva
is merely a rounding out of incomplete and partial agreements of the
Covenant.
And it must be borne in mind that new or varied phrases in one Article
may change the whole; the amended Covenant is altered not only in those
Articles which may be textually amended, but throughout; I attempted to
show this in detail as to Article 10 of the Covenant[2]; like any other
document, the entire new paper must be read together.
What the Protocol of Geneva does is to create a new and a different
League of Nations. It is true that what I may call the procedural and
structural functions of the League are not changed; but the system of
international relations which is now set up under the League is so much
changed that one may properly say that it is an entirely new and
different system.
To my mind, there are three outstanding features of the "amended"
Covenant. It creates a complete system of compulsory arbitration; it
consecrates the legality of the _status quo_; and it is a general
defensive alliance.
Now let us compare these three features of the "amended" Covenant with
the ideas of the existing Covenant.
The first mentioned, the system of compulsory arbitration, is by far
the most important and the one that should be the starting point for
any view of the "amended" Covenant as a whole. In this arbitration
system is contained the idea of outlawry of {108} war which the
document embodies. The arbitration of disputes under the new system is
to take the place of war, which is outlawed.
All that the Covenant did was to forbid some wars, to provide for delay
in every case, and otherwise to rely wholly upon voluntary arbitration
and, in cases where they could be obtained, upon unanimous
recommendations of the Council. The framers of the Covenant were most
careful to avoid the idea of compulsory arbitration, for all that even
the unanimous recommendation of the Council could do was to prevent
hostilities.
Under the "amended" Covenant, the defensive alliance of the Members of
the League becomes complete. It is intended to see to it that arbitral
decrees are carried out; to see to it that the _status quo_ remains
untouched, except by voluntary agreement; and to see to it that the
violator is met by the combined forces of other States.
Contrast the provisions of the Covenant, which contemplate no concerted
action, unless agreed to at the time, other than economic and financial
pressure; and the preservation of the _status quo_ only so far as
Article 10 of the Covenant extends.
It would be unfair and untrue to call this new system a super-state,
for it is nothing of the sort; but it would be in a sense untrue also
to say that this new system is merely a development of the Covenant
itself; it is the sort of change that one might call a development if
it had taken two or three generations or a century to bring it about;
but not properly to be called a development when it all comes at once.
The natural conclusion to be reached is that such a complete change
cannot be realized at this time, and that is the sound conclusion.
That a system of law should be built up governing the international
relations of the States of the world, by which their differences should
be adjusted by the orderly processes of legality, excluding as a method
of adjustment the chaos of war, may be admitted. Thus far, the changes
proposed by the Protocol of Geneva are desirable; the question is
merely as to the length to which the countries of the world are willing
to go in {109} this direction at this time; and I include as a part of
this development, the outlawry of war, the agreement that war is not to
be resorted to by any State, that it should disappear from
international relations, except in so far as force must necessarily
remain as defence.
It is to be hoped that this part of the Protocol may stand; and it must
be admitted that there is inherently and _ipso facto_ to some extent a
consecration of the legality of the _status quo_ by the outlawry of war
and by peaceful settlement of disputes by legal means.
On the other hand, various features of what I may call the defensive
alliance portion of the Protocol seem to me to be impossible and at
this time inadvisable. They are supposed to flow logically from the
system of compulsory arbitration; and certainly the problem which they
attempt to solve does follow logically from any system of compulsory
arbitration and outlawry of war. If we assume war to be outlawed and a
system by which there is to be a legal settlement of disputes in place
of war, the question of course arises: Well, what is to happen in a
given case if some State which has accepted this system and has agreed
to it should refuse to abide by it, should not carry out an award or
decision or should even take up arms against it, what then?
The Continental mind very logically answers this question by saying
there must be a system of execution of decrees and that if you outlaw
war, you must have a combination for defence. This is true from the
point of view of logic; but it is not true from the point of view of
life. Compulsory arbitration and outlawry of war are untried ideas,
and we cannot say now, under all circumstances, what should be done in
the course of their working, if they are put to work; much less can
Nations now bind themselves as to a definite and complete course of
action under all possible and varying future circumstances. That such
a system of concerted action against aggression as is proposed by the
Protocol of Geneva may perhaps in time be worked out along with the
growth and development of the ideas of outlawry of {110} war and of
arbitration, may be admitted. That it can be done now is, to my mind,
contrary to the realities of life and to the lessons of history.
There is another phase of this last discussion which should be
particularly noticed. It is impossible for any such agreement for
concerted action not to have a direct bearing upon countries which are
not parties to the agreement; in other words, Russia and the United
States. We must admit at least the theoretic possibility of a conflict
between one of the Members of the League and one of these two Great
Powers, insisting, if we will, that such a possibility is highly remote
so far as the United States is concerned, and utterly unknowable so far
as Russia is concerned; but none the less a possibility.
And certainly, in view of that possibility, any provisions of a
document which looks toward force as a last resort of defence should,
in my judgment, be drawn with the utmost care to avoid the idea of a
possible conflict between the parties to the document on the one hand
and an outside State on the other. Outlawry of war and arbitration are
things to be agreed upon and not to be compelled against those who are
unwilling to agree; for the breach of such an agreement is a much more
serious and a very different thing than a refusal to arbitrate, or even
than going to war when there is no agreement.
That the hospitality, if I may call it so, of the League of Nations
should be extended to States which are unwilling to join it; that its
facilities should be offered to these States for the settlement of
disputes in every case where they are willing to accept them; that the
covenants of the Members of the League for justice toward an outside
State should be as explicit and complete as its covenants toward a
Member, I quite agree; the covenants of the Members of the League
should be covenants of peace among themselves, and of justice toward
all. This is the road to a universal League of all Nations.
If it be said that to Finland or the Baltic States or Poland or
Roumania or Turkey there is danger from their great neighbour, {111} I
cannot deny such a possibility; and if any Members of the League are
willing to join with such States in protection against such danger,
either in advance of its occurrence or when it happens, I would see no
objection to it, if such agreements were coupled with all the offers of
peaceful settlement that could be written, as well as with offers of
membership in the League, either permanent or _ad hoc_.
To a state which is contemplating the possibility of signing the
Protocol of Geneva, it may well be that the provisions of that document
regarding sanctions stand out as the most important, the ones having
the greatest possibilities as to obligations of future action. This is
a very natural point of view, and even a very proper one. And, while I
myself am very deeply convinced that, from the point of view of world
politics, the most far-reaching and vital provisions of this document
are those which refer to arbitration and to the outlawry of war, yet
perhaps for that very reason, I am equally convinced that the most
serious changes which are necessary in the paper are changes in its
provisions for sanctions and for enforcement.
With the principles of compulsory arbitration I am wholly in accord;
with the principle that outlawry of war should follow as the necessary
and natural consequence of the substitution of a reign of law for a
reign of force I quite agree; and that some tribunal should determine,
if need arise, that the agreement has been broken and that there is an
"outlaw," is a natural consequence of those principles; and that there
may be defence against aggression, if it comes, almost no one will
deny. But there, I think, we must stop so far as present agreement is
concerned. That any State may, _if it chooses_, go to the defence of
another against an adjudged aggressor I would concede; but that all
States can be or should be now required to sign an agreement so to go
to such defence, I deny. In the present state of world opinion and
when its own direct interests are not involved, any free people can
well say that it will not or ought not to sign such an undertaking.
So I say that, while arbitration may be agreed to in advance {112} and
outlawry of war may be agreed to in advance, sanctions and assistance
in defence must be voluntary.
Where does all this leave the problems of disarmament and security?
I answer by saying that the solution of these problems is very
difficult, because with it are involved feelings of national fear and
haunting doubts of possible national disaster. The feeling of security
must be a plant of slow growth, and progress toward disarmament cannot
be realized except to the extent that that growth comes. All that can
be done now is to make a beginning, and, if too much is attempted, less
will be accomplished. The world must rely on the development of the
new idea of the reign of law and reach its feeling of security as that
reign succeeds and triumphs.
The Protocol of Geneva is one of the most important of modern
international documents. This is true whether it comes into force as a
binding treaty or whether it does not; and it is true because the
Protocol represents a development of international thought since the
World War along lines of what may be called international morality, of
what may almost be called international religion, which, while not
novel in the realm of thought, were wholly novel in the diplomatic
field of action.
The belief that international law must be strengthened, the thought
that it must lay hold of international questions before the time of war
and the idea that the security of a country is to be a security for
peace and not simply a security in war, were the principles upon which
the Covenant of the League of Nations was based; but in that document
they were to some extent formulated only as hopes for the future.
These ideas which the Protocol of Geneva seeks to make complete
realities have fundamentally become a part of international life. To
my mind, they are certain to be carried out in some document in the
near future and one of their incidents will be the realization of
schemes for the reduction of armament as an incident of the development
of the feeling which exists as to security.
{113}
The Protocol of Geneva will undoubtedly be much changed as a result of
the consideration which is now being given to it by the various
important governments of the world.[3] In various respects the
Protocol goes farther than cautious public sentiment of countries like
Great Britain and her Dominions is, or ought to be, willing now to
proceed; but it is these very matters which can easily be changed and
which will be changed.
The Conference on Disarmament and its result are the cornerstones on
which the Protocol of Geneva rests. That Conference must be held and
it must have a result; the public sentiment of the world demands it;
and the satisfaction of that demand involves the adoption by the
Members of the League of the Protocol of Geneva, not the document as it
now is, but as it will be.
[1] See Annex G, p. 271.
[2] _Supra_, p. 84.
[3] Since this monograph was written, I have received the text of the
Report of the British Delegates regarding the Protocol of Geneva
(Miscellaneous No. 21, 1924, Cmd. 2289). It is reprinted as Annex E,
page 217. It is a most valuable and interesting document. I have
carefully considered its conclusions, some of which are not the same as
my own, and despite my very high regard for its authors, I see no
reason to change anything that I have written.
{116}
ANNEXES.
PAGE
A. THE COVENANT OF THE LEAGUE OF NATIONS .......................... 117
B. THE PROTOCOL OF GENEVA ......................................... 132
C. THE REPORT TO THE FIFTH ASSEMBLY ............................... 156
D. RESOLUTIONS .................................................... 210
E. REPORT OF THE BRITISH DELEGATES ................................ 217
F. THE AMERICAN PLAN .............................................. 263
G. THE "AMENDED" COVENANT ......................................... 271
{117}
ANNEX A.
THE COVENANT
OF THE
LEAGUE OF NATIONS.[1]
THE HIGH CONTRACTING PARTIES,
In order to promote international co-operation and to achieve
international peace and security
by the acceptance of obligations not to resort to war,
by the prescription of open, just and honourable relations
between nations,
by the firm establishment of the understandings of
international law as the actual rule of conduct among
Governments, and
by the maintenance of justice and a scrupulous respect
for all treaty obligations in the dealings of organised
peoples with one another,
Agree to this Covenant of the League of Nations.
ARTICLE 1.
The original Members of the League of Nations shall be those of the
Signatories which are named in the Annex to this Covenant and also such
of those other States named in the Annex as shall accede without
reservation to this Covenant. Such accession shall be effected by a
Declaration deposited with the Secretariat within two months of the
coming into force of the Covenant. Notice thereof shall be sent to all
other Members of the League.
Any fully self-governing State, Dominion or Colony not named in the
Annex may become a Member of the League if its admission is agreed to
by two-thirds of the Assembly, provided that it shall give effective
guarantees of its sincere intention to observe its international
obligations, and shall accept such regulations as may be prescribed by
the League in regard to its military, naval and air forces and
armaments.
{118}
Any Member of the League may, after two years' notice of its intention
so to do, withdraw from the League, provided that all its international
obligations and all its obligations under this Covenant shall have been
fulfilled at the time of its withdrawal.
ARTICLE 2.
The action of the League under this Covenant shall be effected through
the instrumentality of an Assembly and of a Council, with a permanent
Secretariat.
ARTICLE 3.
The Assembly shall consist of Representatives of the Members of the
League.
The Assembly shall meet at stated intervals and from time to time as
occasion may require at the Seat of the League or at such other place
as may be decided upon.
The Assembly may deal at its meetings with any matter within the sphere
of action of the League or affecting the peace of the world.
At meetings of the Assembly each Member of the League shall have one
vote, and may have not more than three Representatives.
ARTICLE 4.
The Council shall consist of Representatives of the Principal Allied
and Associated Powers, together with Representatives of four other
Members of the League. These four Members of the League shall be
selected by the Assembly from time to time in its discretion. Until
the appointment of the Representatives of the four Members of the
League first selected by the Assembly, Representatives of Belgium,
Brazil, Spain and Greece shall be members of the Council.
With the approval of the majority of the Assembly, the Council may name
additional Members of the League whose Representatives shall always be
members of the Council; the Council {119} with like approval may
increase the number of Members of the League to be selected by the
Assembly for representation on the Council.
The Council shall meet from time to time as occasion may require, and
at least once a year, at the Seat of the League, or at such other place
as may be decided upon.
The Council may deal at its meetings with any matter within the sphere
of action of the League or affecting the peace of the world.
Any Member of the League not represented on the Council shall be
invited to send a Representative to sit as a member at any meeting of
the Council during the consideration of matters specially affecting the
interests of that Member of the League.
At meetings of the Council, each Member of the League represented on
the Council shall have one vote, and may have not more than one
Representative.
ARTICLE 5.
Except where otherwise expressly provided in this Covenant or by the
terms of the present Treaty, decisions at any meeting of the Assembly
or of the Council shall require the agreement of all the Members of the
League represented at the meeting.
All matters of procedure at meetings of the Assembly or of the Council,
including the appointment of Committees to investigate particular
matters, shall be regulated by the Assembly or by the Council and may
be decided by a majority of the Members of the League represented at
the meeting.
The first meeting of the Assembly and the first meeting of the Council
shall be summoned by the President of the United States of America.
ARTICLE 6.
The permanent Secretariat shall be established at the Seat of the
League. The Secretariat shall comprise a Secretary General and such
secretaries and staff as may be required.
{120}
The first Secretary General shall be the person named in the Annex;
thereafter the Secretary General shall be appointed by the Council with
the approval of the majority of the Assembly.
The secretaries and staff of the Secretariat shall be appointed by the
Secretary General with the approval of the Council.
The Secretary General shall act in that capacity at all meetings of the
Assembly and of the Council.
The expenses of the League shall be borne by the Members of the League
in the proportion decided by the Assembly.
ARTICLE 7.
The Seat of the League is established at Geneva.
The Council may at any time decide that the Seat of the League shall be
established elsewhere.
All positions under or in connection with the League, including the
Secretariat, shall be open equally to men and women.
Representatives of the Members of the League and officials of the
League when engaged on the business of the League shall enjoy
diplomatic privileges and immunities.
The buildings and other property occupied by the League or its
officials or by Representatives attending its meetings shall be
inviolable.
ARTICLE 8.
The Members of the League recognise that the maintenance of peace
requires the reduction of national armaments to the lowest point
consistent with national safety and the enforcement by common action of
international obligations.
The Council, taking account of the geographical situation and
circumstances of each State, shall formulate plans for such reduction
for the consideration and action of the several Governments.
Such plans shall be subject to reconsideration and revision at least
every ten years.
After these plans shall have been adopted by the several {121}
Governments, the limits of armaments therein fixed shall not be
exceeded without the concurrence of the Council.
The Members of the League agree that the manufacture by private
enterprise of munitions and implements of war is open to grave
objections. The Council shall advise how the evil effects attendant
upon such manufacture can be prevented, due regard being had to the
necessities of those Members of the League which are not able to
manufacture the munitions and implements of war necessary for their
safety.
The Members of the League undertake to interchange full and frank
information as to the scale of their armaments, their military, naval
and air programmes and the condition of such of their industries as are
adaptable to war-like purposes.
ARTICLE 9.
A permanent Commission shall be constituted to advise the Council on
the execution of the provisions of Articles 1 and 8 and on military,
naval and air questions generally.
ARTICLE 10.
The Members of the League undertake to respect and preserve as against
external aggression the territorial integrity and existing political
independence of all Members of the League. In case of any such
aggression or in case of any threat or danger of such aggression the
Council shall advise upon the means by which this obligation shall be
fulfilled.
ARTICLE 11.
Any war or threat of war, whether immediately affecting any of the
Members of the League or not, is hereby declared a matter of concern to
the whole League, and the League shall take any action that may be
deemed wise and effectual to safeguard the peace of nations. In case
any such emergency should arise the Secretary General shall on the
request of any Member of the League forthwith summon a meeting of the
Council.
{122}
It is also declared to be the friendly right of each Member of the
League to bring to the attention of the Assembly or of the Council any
circumstance whatever affecting international relations which threatens
to disturb international peace or the good understanding between
nations upon which peace depends.
ARTICLE 12.
The Members of the League agree that, if there should arise between
them any dispute likely to lead to a rupture they will submit the
matter either to arbitration or judicial settlement or to enquiry by
the Council, and they agree in no case to resort to war until three
months after the award by the arbitrators or the judicial decision, or
the report by the Council.
In any case under this Article the award of the arbitrators or the
judicial decision shall be made within a reasonable time, and the
report of the Council shall be made within six months after the
submission of the dispute.
ARTICLE 13.
The Members of the League agree that whenever any dispute shall arise
between them which they recognise to be suitable for submission to
arbitration or judicial settlement and which cannot be satisfactorily
settled by diplomacy, they will submit the whole subject-matter to
arbitration or judicial settlement.
Disputes as to the interpretation of a treaty, as to any question of
international law, as to the existence of any fact which if established
would constitute a breach of any international obligation, or as to the
extent and nature of the reparation to be made for any such breach, are
declared to be among those which are generally suitable for submission
to arbitration or judicial settlement.
For the consideration of any such dispute, the court to which the case
is referred shall be the Permanent Court of International Justice,
established in accordance with Article 14, or any tribunal agreed on by
the parties to the dispute or stipulated in any convention existing
between them.
{123}
The Members of the League agree that they will carry out in full good
faith any award or decision that may be rendered and that they will not
resort to war against a Member of the League which complies therewith.
In the event of any failure to carry out such an award or decision, the
Council shall propose what steps should be taken to give effect thereto.
ARTICLE 14.
The Council shall formulate and submit to the Members of the League for
adoption plans for the establishment of a Permanent Court of
International Justice. The Court shall be competent to hear and
determine any dispute of an international character which the parties
thereto submit to it. The Court may also give an advisory opinion upon
any dispute or question referred to it by the Council or by the
Assembly.
ARTICLE 15.
If there should arise between Members of the League any dispute likely
to lead to a rupture, which is not submitted to arbitration or judicial
settlement in accordance with Article 13, the Members of the League
agree that they will submit the matter to the Council. Any party to
the dispute may effect such submission by giving notice of the
existence of the dispute to the Secretary General, who will make all
necessary arrangements for a full investigation and consideration
thereof.
For this purpose the parties to the dispute will communicate to the
Secretary General, as promptly as possible, statements of their case
with all the relevant facts and papers, and the Council may forthwith
direct the publication thereof.
The Council shall endeavour to effect a settlement of the dispute, and
if such efforts are successful, a statement shall be made public giving
such facts and explanations regarding the dispute and the terms of
settlement thereof as the Council may deem appropriate.
If the dispute is not thus settled, the Council either {124}
unanimously or by a majority vote shall make and publish a report
containing a statement of the facts of the dispute and the
recommendations which are deemed just and proper in regard thereto.
Any Member of the League represented on the Council may make public a
statement of the facts of the dispute and of its conclusions regarding
the same.
If a report by the Council is unanimously agreed to by the members
thereof other than the Representatives of one or more of the parties to
the dispute, the Members of the League agree that they will not go to
war with any party to the dispute which complies with the
recommendations of the report.
If the Council fails to reach a report which is unanimously agreed to
by the members thereof, other than the Representatives of one or more
of the parties to the dispute, the Members of the League reserve to
themselves the right to take such action as they shall consider
necessary for the maintenance of right and justice.
If the dispute between the parties is claimed by one of them, and is
found by the Council, to arise out of a matter which by international
law is solely within the domestic jurisdiction of that party, the
Council shall so report, and shall make no recommendation as to its
settlement.
The Council may in any case under this Article refer the dispute to the
Assembly. The dispute shall be so referred at the request of either
party to the dispute, provided that such request be made within
fourteen days after the submission of the dispute to the Council.
In any case referred to the Assembly, all the provisions of this
Article and of Article 12 relating to the action and powers of the
Council shall apply to the action and powers of the Assembly, provided
that a report made by the Assembly, if concurred in by the
Representatives of those Members of the League represented on the
Council and of a majority of the other Members of the League, exclusive
in each case of the Representatives of the parties to the dispute,
shall have the same force as a report by the Council concurred in by
all the members thereof {125} other than the Representatives of one or
more of the parties to the dispute.
ARTICLE 16.
Should any Member of the League resort to war in disregard of its
covenants under Articles 12, 13 or 15, it shall _ipso facto_ be deemed
to have committed an act of war against all other Members of the
League, which hereby undertake immediately to subject it to the
severance of all trade or financial relations, the prohibition of all
intercourse between their nationals and the nationals of the
covenant-breaking State, and the prevention of all financial,
commercial or personal intercourse between the nationals of the
covenant-breaking State and the nationals of any other State, whether a
Member of the League or not.
It shall be the duty of the Council in such case to recommend to the
several Governments concerned what effective military, naval or air
force the Members of the League shall severally contribute to the armed
forces to be used to protect the covenants of the League.
The Members of the League agree, further, that they will mutually
support one another in the financial and economic measures which are
taken under this Article, in order to minimise the loss and
inconvenience resulting from the above measures, and that they will
mutually support one another in resisting any special measures aimed at
one of their number by the covenant-breaking State, and that they will
take the necessary steps to afford passage through their territory to
the forces of any of the Members of the League which are co-operating
to protect the covenants of the League.
Any Member of the League which has violated any covenant of the League
may be declared to be no longer a Member of the League by a vote of the
Council concurred in by the Representatives of all the other Members of
the League represented thereon.
{126}
ARTICLE 17.
In the event of a dispute between a Member of the League and a State
which is not a Member of the League, or between States not Members of
the League, the State or States not Members of the League shall be
invited to accept the obligations of membership in the League for the
purposes of such dispute, upon such conditions as the Council may deem
just. If such invitation is accepted, the provisions of Articles 12 to
16 inclusive shall be applied with such modifications as may be deemed
necessary by the Council.
Upon such invitation being given the Council shall immediately
institute an inquiry into the circumstances of the dispute and
recommend such action as may seem best and most effectual in the
circumstances.
If a State so invited shall refuse to accept the obligations of
membership in the League for the purposes of such dispute, and shall
resort to war against a Member of the League, the provisions of Article
16 shall be applicable as against the State taking such action.
If both parties to the dispute when so invited refuse to accept the
obligations of membership in the League for the purposes of such
dispute, the Council may take such measures and make such
recommendations as will prevent hostilities and will result in the
settlement of the dispute.
ARTICLE 18.
Every treaty or international engagement entered into hereafter by any
Member of the League shall be forthwith registered with the Secretariat
and shall as soon as possible be published by it. No such treaty or
international engagement shall be binding until so registered.
ARTICLE 19.
The Assembly may from time to time advise the {127} reconsideration by
Members of the League of treaties which have become inapplicable and
the consideration of international conditions whose continuance might
endanger the peace of the world.
ARTICLE 20.
The Members of the League severally agree that this Covenant is
accepted as abrogating all obligations or understandings _inter se_
which are inconsistent with the terms thereof, and solemnly undertake
that they will not hereafter enter into any engagements inconsistent
with the terms thereof.
In case any Member of the League shall, before becoming a Member of the
League, have undertaken any obligations inconsistent with the terms of
this Covenant, it shall be the duty of such Member to take immediate
steps to procure its release from such obligations.
ARTICLE 21.
Nothing in this Covenant shall be deemed to affect the validity of
international engagements, such as treaties of arbitration or regional
understandings like the Monroe doctrine, for securing the maintenance
of peace.
ARTICLE 22.
To those colonies and territories which as a consequence of the late
war have ceased to be under the sovereignty of the States which
formerly governed them and which are inhabited by peoples not yet able
to stand by themselves under the strenuous conditions of the modern
world, there should be applied the principle that the well-being and
development of such peoples form a sacred trust of civilisation and
that securities for the performance of this trust should be embodied in
this Covenant.
The best method of giving practical effect to this principle is that
the tutelage of such peoples should be entrusted to advanced nations
who by reason of their resources, their experience or their
geographical position can best undertake this {128} responsibility, and
who are willing to accept it, and that this tutelage should be
exercised by them as Mandatories on behalf of the League.
The character of the mandate must differ according to the stage of the
development of the people, the geographical situation of the territory,
its economic conditions and other similar circumstances.
Certain communities formerly belonging to the Turkish Empire have
reached a stage of development where their existence as independent
nations can be provisionally recognized subject to the rendering of
administrative advice and assistance by a Mandatory until such time as
they are able to stand alone. The wishes of these communities must be
a principal consideration in the selection of the Mandatory.
Other peoples, especially those of Central Africa, are at such a stage
that the Mandatory must be responsible for the administration of the
territory under conditions which will guarantee freedom of conscience
and religion, subject only to the maintenance of public order and
morals, the prohibition of abuses such as the slave trade, the arms
traffic and the liquor traffic, and the prevention of the establishment
of fortifications or military and naval bases and of military training
of the natives for other than police purposes and the defence of
territory, and will also secure equal opportunities for the trade and
commerce of other Members of the League.
There are territories, such as South-West Africa and certain of the
South Pacific Islands, which, owing to the sparseness of their
population, or their small size, or their remoteness from the centres
of civilisation, or their geographical contiguity to the territory of
the Mandatory, and other circumstances, can be best administered under
the laws of the Mandatory as integral portions of its territory,
subject to the safeguards above mentioned in the interests of the
indigenous population.
In every case of mandate, the Mandatory shall render to the Council an
annual report in reference to the territory committed to its charge.
{129}
The degree of authority, control, or administration to be exercised by
the Mandatory shall, if not previously agreed upon by the Members of
the League, be explicitly defined in each case by the Council.
A permanent Commission shall be constituted to receive and examine the
annual reports of the Mandatories and to advise the Council on all
matters relating to the observance of the mandates.
ARTICLE 23.
Subject to and in accordance with the provisions of international
conventions existing or hereafter to be agreed upon, the Members of the
League:
(_a_) will endeavour to secure and maintain fair and humane
conditions of labour for men, women, and children, both in
their own countries and in all countries to which their
commercial and industrial relations extend, and for that
purpose will establish and maintain the necessary international
organisations;
(_b_) undertake to secure just treatment of the native
inhabitants of territories under their control;
(_c_) will entrust the League with the general supervision over
the execution of agreements with regard to the traffic in women
and children, and the traffic in opium and other dangerous drugs;
(_d_) will entrust the League with the general supervision of
the trade in arms and ammunition with the countries in which the
control of this traffic is necessary in the common interest;
(_e_) will make provision to secure and maintain freedom of
communications and of transit and equitable treatment for the
commerce of all Members of the League. In this connection, the
special necessities of the regions devastated during the war of
1914-1918 shall be borne in mind;
(_f_) will endeavour to take steps in matters of international
concern for the prevention and control of disease.
{130}
ARTICLE 24.
There shall be placed under the direction of the League all
international bureaux already established by general treaties if the
parties to such treaties consent. All such international bureaux and
all commissions for the regulation of matters of international interest
hereafter constituted shall be placed under the direction of the League.
In all matters of international interest which are regulated by general
convention but which are not placed under the control of international
bureaux or commissions, the Secretariat of the League shall, subject to
the consent of the Council and if desired by the parties, collect and
distribute all relevant information and shall render any other
assistance which may be necessary or desirable.
The Council may include as part of the expenses of the Secretariat the
expenses of any bureau or commission which is placed under the
direction of the League.
ARTICLE 25.
The Members of the League agree to encourage and promote the
establishment and co-operation of duly authorised voluntary national
Red Cross organisations having as purposes the improvement of health,
the prevention of disease and the mitigation of suffering throughout
the world.
ARTICLE 26.
Amendments to this Covenant will take effect when ratified by the
Members of the League whose Representatives compose the Council and by
a majority of the Members of the League whose Representatives compose
the Assembly.
No such amendments shall bind any Member of the League which signifies
its dissent therefrom, but in that case it shall cease to be a Member
of the League.
[1] Including Amendments adopted to December, 1924.
_The text of the Protocol of Geneva, which follows as Annex B, is
printed in French and English on opposite pages._
[Transcriber's note: In the source book, the French and English texts
were on facing pages, French on the even/left-hand pages, English on
the odd/right-hand pages. The same page order has been preserved in
this etext, occasionally resulting split paragraphs.]
{132}
ANNEX B.
PROTOCOLE POUR LE REGLEMENT PACIFIQUE DES DIFFERENDS INTERNATIONAUX.
Animés de la ferme volonté d'assurer le maintien de la paix générale et
la sécurité des peuples dont l'existence, l'indépendance ou les
territoires pourraient être menacés;
Reconnaissant la solidarité qui unit les membres de la communauté
internationale;
Affirmant que la guerre d'agression constitue une infraction à cette
solidarité et un crime international;
Désireux de faciliter la complète application du système prévu au Pacte
de la Société des Nations pour le règlement pacifique des différends
entre les Etats et d'assurer la répression des crimes internationaux; et
Afin de réaliser, comme l'envisage l'article 8 du Pacte, la réduction
des armements nationaux au minimum compatible avec la sécurité
nationale et avec l'exécution des obligations internationales imposées
par une action commune,
Les Soussignés, dûment autorisés à cet effet, sont convenus des
dispositions suivantes:
ARTICLE PREMIER.
Les Etats signataires s'engagent à faire tous efforts en leur pouvoir
pour l'introduction dans le Pacte d'amendements conformes au sens des
dispositions contenues dans les articles suivants.
Ils conviennent que ces dispositions deviendront obligatoires dans
leurs rapports respectifs à la date de la mise en vigueur du présent
Protocole et que, vis-à-vis d'eux, l'Assemblée et le Conseil de la
Société des Nations seront, dès lors, autorisés à exercer tous les
droits et devoirs qui leur sont conférés par ce Protocole.
ARTICLE 2.
Les Etats signataires conviennent qu'en aucun cas ils ne
{133}
ANNEX B.
PROTOCOL FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES.
Animated by the firm desire to ensure the maintenance of general peace
and the security of nations whose existence, independence or
territories may be threatened;
Recognising the solidarity of the members of the international
community;
Asserting that a war of aggression constitutes a violation of this
solidarity and an international crime;
Desirous of facilitating the complete application of the system
provided in the Covenant of the League of Nations for the pacific
settlement of disputes between States and of ensuring the repression of
international crimes; and
For the purpose of realising, as contemplated by Article 8 of the
Covenant, the reduction of national armaments to the lowest point
consistent with national safety and the enforcement by common action of
international obligations;
The Undersigned, duly authorised to that effect, agree as follows:
ARTICLE 1.
The signatory States undertake to make every effort in their power to
secure the introduction into the Covenant of amendments on the lines of
the provisions contained in the following articles.
They agree that, as between themselves, these provisions shall be
binding as from the coming into force of the present Protocol and that,
so far as they are concerned, the Assembly and the Council of the
League of Nations shall thenceforth have power to exercise all the
rights and perform all the duties conferred upon them by the Protocol.
ARTICLE 2.
The signatory States agree in no case to resort to war either
{134}
doivent recourir à la guerre, ni entre eux ni contre tout Etat qui, le
cas échéant, accepterait toutes les obligations ci-après définies,
excepté dans le cas de résistance à des actes d'agression ou quand ils
agissent en accord avec le Conseil ou l'Assemblée de la Société des
Nations, selon les dispositions du Pacte et du présent Protocole.
ARTICLE 3.
Les Etats signataires s'engagent à reconnaître comme obligatoire, de
plein droit et sans convention spéciale, la juridiction de la Cour
permanente de Justice internationale dans les cas visés au paragraphe 2
de l'Article 36 du Statut de la Cour, mais sans préjudice de la faculté
pour un Etat quelconque, lorsqu'il adhérera au protocole special ouvert
le 16 décembre 1920, prévu par ledit article, de formuler les réserves
compatibles avec ladite clause.
L'adhésion à ce protocole spécial ouvert le 16 décembre 1920 devra être
faite dans le délai d'un mois qui suivra la mise en vigueur du présent
Protocole.
Les Etats qui adhéreront au présent Protocole après sa mise en vigueur
devront s'acquitter de l'obligation ci-dessus dans le mois qui suivra
leur adhésion.
ARTICLE 4.
En vue de compléter les dispositions des alinéas 4, 5, 6 et 7 de
l'article 15 du Pacte, les Etats signataires conviennent de se
conformer à la procedure suivante:
1. Si le différend soumis au Conseil n'a pu être réglé par lui
ainsi qu'il est prévu au paragraphe 3 dudit article 15, le Conseil
engagera les Parties à soumettre le différend à un règlement
judiciaire ou arbitral.
2. a) Si les Parties s'y refusent, il est procédé, à la demande
d'au moins l'une des Parties, à la constitution d'un Comité
d'arbitres. Le Comité sera constitué, autant que possible, par
l'accord des Parties.
{135}
with one another or against a State which, if the occasion arises
accepts all the obligations hereinafter set out, except in case of
resistance to acts of aggression or when acting in agreement with the
Council or the Assembly of the League of Nations in accordance with the
provisions of the Covenant and of the present Protocol.
ARTICLE 3.
The signatory States undertake to recognise as compulsory, _ipso facto_
and without special agreement, the jurisdiction of the Permanent Court
of International Justice in the cases covered by paragraph 2 of Article
36 of the Statute of the Court, but without prejudice to the right of
any State, when acceding to the special protocol provided for in the
said Article and opened for signature on December 16th, 1920, to make
reservations compatible with the said clause.
Accession to this special protocol, opened for signature on December
16th, 1920, must be given within the month following the coming into
force of the present Protocol.
States which accede to the present Protocol, after its coming into
force, must carry out the above obligation, within the month following
their accession.
ARTICLE 4.
With a view to render more complete the provisions of paragraphs 4, 5,
6, and 7 of Article 15 of the Covenant, the signatory States agree to
comply with the following procedure:
1. If the dispute submitted to the Council is not settled by it as
provided in paragraph 3 of the said Article 15, the Council shall
endeavour to persuade the parties to submit the dispute to judicial
settlement or arbitration.
2. (_a_) If the parties cannot agree to do so, there shall, at the
request of at least one of the parties, be constituted a Committee
of Arbitrators. The Committee shall so far as possible be
constituted by agreement between the parties.
{136}
_b_) Si, dans le délai que le Conseil aura fixé, elles ne se sont
pas entendues en tout ou en partie sur le nombre, le nom et les
pouvoirs des arbitres, ainsi que sur la procedure, le Conseil
réglera les points en suspens. Il choisira d'urgence--en
consultant les Parties--les arbitres et leur président, parmi les
personnes qui, par leur nationalité, leur caractère et leur
expérience, lui paraîtront donner les plus hautes garanties de
compétence et d'impartialité.
_c_) Après que les conclusions des Parties auront été formulées,
le Comité d'arbitres, à la demande de toute Partie, sollicitera,
par l'entremise du Conseil, sur les points de droit contestés,
l'avis consultatif de la Cour permanente de Justice
Internationale qui, dans ce cas, se réunira d'urgence.
3. Si aucune des Parties ne demande l'arbitrage, le Conseil
reprendra l'examen du différend. Au cas où le Conseil établit un
rapport voté à l'unanimité de ses membres autres que les
représentants de toute Partie au différend, les Etats signataires
conviennent de se conformer aux solutions recommandées par lui.
4. Au cas où le Conseil ne peut établir un rapport accepté par
tous ses membres autres que les représentants de toute Partie au
différend, il soumettra le différend a l'arbitrage. Il réglera
lui-même la composition, les pouvoirs et la procedure du Comité
d'arbitres et aura égard, dans le choix des arbitres, aux
garanties de compétence et d'impartialité visées au No. 2_b_
ci-dessus.
5. En aucun cas ne pourront être remises en question les solutions
ayant déjà fait l'objet d'une recommandation unanime du Conseil
acceptée par l'une des Parties interéssées.
6. Les Etats signataires s'engagent à éxecuter de bonne foi les
sentences judiciaires ou arbitrales et à se conformer, comme il
a été dit a l'alinéa 3 ci-dessus, aux solutions recommandées par
le Conseil. Dans le cas où un Etat manquerait à ces engagements,
le Conseil exercera toute son influence pour en assurer le
respect. S'il ne peut y réussir, il proposera les mesures qui
doivent en assurer
{137}
(_b_) If within the period fixed by the Council the parties have
failed to agree, in whole or in part, upon the number, the names
and the powers of the arbitrators and upon the procedure, the
Council shall settle the points remaining in suspense. It shall
with the utmost possible despatch select in consultation with the
parties the arbitrators and their President from among persons
who by their nationality, their personal character and their
experience, appear to it to furnish the highest guarantees of
competence and impartiality.
(_c_) After the claims of the parties have been formulated, the
Committee of Arbitrators, on the request of any party, shall
through the medium of the Council request an advisory opinion
upon any points of law in dispute from the Permanent Court of
International Justice, which in such case shall meet with the
utmost possible despatch.
3. If none of the parties asks for arbitration, the Council shall
again take the dispute under consideration. If the Council
reaches a report which is unanimously agreed to by the members
thereof other than the representatives of any of the parties to
the dispute, the signatory States agree to comply with the
recommendations therein.
4. If the Council fails to reach a report which is concurred in
by all its members, other than the representatives of any of the
parties to the dispute, it shall submit the dispute to
arbitration. It shall itself determine the composition, the
powers and the procedure of the Committee of Arbitrators and, in
the choice of the arbitrators, shall bear in mind the guarantees
of competence and impartiality referred to in paragraph 2 (_b_)
above.
5. In no case may a solution, upon which there has already been a
unanimous recommendation of the Council accepted by one of the
parties concerned, be again called in question.
6. The signatory States undertake that they will carry out in
full good faith any judicial sentence or arbitral award that may
be rendered and that they will comply, as provided in paragraph 3
above, with the solutions recommended by the Council. In the
event of a State failing to carry out the above undertakings, the
Council shall exert all its influence to secure compliance
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l'effet, ainsi qu'il est dit à la fin de l'article 13 du Pacte.
Dans le cas où un Etat, manquant à ces engagements, recourrait à
la guerre, les sanctions prévues à l'article 16 du Pacte,
interpretées de la manière indiquée au présent Protocole, lui
deviendraient immédiatement applicables.
7. Les dispositions du présent article ne s'appliquent pas au
règlement des différends qui pourraient s'élever à la suite
des mesures de guerre prises par un ou plusieurs Etats signataires
en accord avec le Conseil ou l'Assemblée.
ARTICLE 5.
La disposition de l'alinéa 8 de l'article 15 du Pacte demeure
applicable devant le Conseil.
Si, pendant le cours d'une des procédures d'arbitrage prévues à
l'article 4 ci-dessus, l'une des Parties prétend que le différend, ou
une partie du différend, porte sur une question que le droit
international laisse à la compétence exclusive de cette Partie, les
arbitres consulteront sur ce point la Cour permanente de Justice
internationale par l'entremise du Conseil. L'avis de la Cour liera les
arbitres qui se borneront, si cet avis est affirmatif, à le constater
dans leur sentence.
Si la question est reconnue par la Cour permanente ou par le Conseil
comme étant de la compétence exclusive d'un Etat, la décision
intervenue n'empêchera pas que la situation soit examinée par le
Conseil ou par l'Assemblée, conformément à l'article 11 du Pacte.
ARTICLE 6.
Si, conformément à l'alinéa 9 de l'article 15 du Pacte, le différend
est porté devant l'Assemblée, celle-ci aura, pour le règlement du
différend, tous les pouvoirs dévolus au Conseil en ce qui concerne
l'essai de conciliation des Parties, tel qu'il est prévu aux alinéas 1,
2 ct 3 de l'article 15 du Pacte et au No. 1 de l'article 4 ci-dessus.
A défaut de reglement amiable obténu par l'Assemblée:
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therewith. If it fails therein, it shall propose what steps should
be taken to give effect thereto, in accordance with the provision
contained at the end of Article 13 of the Covenant. Should a State
in disregard of the above undertakings resort to war, the sanctions
provided for by Article 16 of the Covenant, interpreted in the
manner indicated in the present Protocol, shall immediately become
applicable to it.
7. The provisions of the present article do not apply to the
settlement of disputes which arise as the result of measures of war
taken by one or more signatory States in agreement with the Council
or the Assembly.
ARTICLE 5.
The provisions of paragraph 8 of Article 15 of the Covenant shall
continue to apply in proceedings before the Council.
If in the course of an arbitration, such as is contemplated in Article
4 above, one of the parties claims that the dispute, or part thereof,
arises out of a matter which by international law is solely within the
domestic jurisdiction of that party, the arbitrators shall on this
point take the advice of the Permanent Court of International Justice
through the medium of the Council. The opinion of the Court shall be
binding upon the arbitrators, who, if the opinion is affirmative, shall
confine themselves to so declaring in their award.
If the question is held by the Court or by the Council to be a matter
solely within the domestic jurisdiction of the State, this decision
shall not prevent consideration of the situation by the Council or by
the Assembly under Article 11 of the Covenant.
ARTICLE 6.
If in accordance with paragraph 9 of Article 15 of the Covenant a
dispute is referred to the Assembly, that body shall have for the
settlement of the dispute all the powers conferred upon the Council as
to endeavouring to reconcile the parties in the manner laid down in
paragraphs 1, 2 and 3 of Article 15 of the Covenant and in paragraph 1
of Article 4 above.
Should the Assembly fail to achieve an amicable settlement:
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Si l'une des Parties demande l'arbitrage, il est procédé par le
Conseil à la constitution du Comité d'arbitres, dans les
conditions prevues au No. 2 de l'article 4 ci-dessus, lettres
_a_, _b_ et _c_;
Si aucune des Parties ne demande l'arbitrage, l'Assemblée reprend,
avec les mêmes pouvoirs que le Conseil, l'examen du différend.
Les solutions recommandées par le Rapport de l'Assemblée, dans
les conditions d'approbation prévues à la fin de l'alinéa 10 de
l'article 15 du Pacte, ont la même valeur et produiront les mêmes
effets, en tout ce qui concerne le présent Protocole, que celles
recommandées par le Rapport du Conseil dans les conditions prévues
au No. 3 de l'article 4 ci-dessus.
Si la majorité nécessaire ne peut être obtenue, le différend sera
soumis a l'arbitrage et le Conseil réglera lui-même la composition, les
pouvoirs et la procédure du Comité d'arbitres, comme il est dit au No.
4 dudit article 4.
ARTICLE 7.
Dans le cas d'un différend s'elevant entre deux ou plusieurs Etats
signataires, ceux-ci conviennent que, soit avant que le differénd ait
été soumis à une procédure de règlement pacifique, soit au cours d'une
telle procédure, ils ne procéderont à aucune augmentation d'armements
ou d'effectifs qui pourrait modifier la situation fixée par la
Conférence pour la réduction des armements prévue à l'article 17 du
présent Protocole; ils ne procederont non plus à aucune mesure de
mobilisation militaire, navale, aerienne, industrielle ou économique,
ni en géneral à aucun acte de nature à aggraver ou à étendre le
différend.
Conformément aux dispositions de l'article 11 du Pacte, il est du
devoir du Conseil d'examiner toute plainte en violation des engagements
ci-dessus, qui pourrait lui être adressée par un ou plusieurs des Etats
parties au différend. Si le Conseil considère que la plainte est
recevable, il doit, s'il l'estime convenable, organiser des enquêtes et
des investigations dans un ou plusieurs des pays intéressés. Ces
enquêtes et ces investigations doivent être faites dans les délais les
plus brefs, et les Etats signataires s'engagent à donner toutes
facilités pour leur exécution.
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If one of the parties asks for arbitration, the Council shall proceed
to constitute the Committee of Arbitrators in the manner provided in
sub-paragraphs (_a_), (_b_) and (_c_) of paragraph 2 of Article 4
above.
If no party asks for arbitration, the Assembly shall again take the
dispute under consideration and shall have in this connection the
same powers as the Council. Recommendations embodied in a report
of the Assembly, provided that it secures the measure of support
stipulated at the end of paragraph 10 of Article 15 of the Covenant,
shall have the same value and effect, as regards all matters dealt
with in the present Protocol, as recommendations embodied in a
report of the Council adopted as provided in paragraph 3 of Article
4 above.
If the necessary majority cannot be obtained, the dispute shall be
submitted to arbitration and the Council shall determine the
composition, the powers and the procedure of the Committee of
Arbitrators as laid down in paragraph 4 of Article 4.
ARTICLE 7.
In the event of a dispute arising between two or more signatory States,
these States agree that they will not, either before the dispute is
submitted to proceedings for pacific settlement or during such
proceedings, make any increase of their armaments or effectives which
might modify the position established by the Conference for the
Reduction of Armaments provided for by Article 17 of the present
Protocol, nor will they take any measure of military, naval, air,
industrial or economic mobilisation, nor, in general, any action of a
nature likely to extend the dispute or render it more acute.
It shall be the duty of the Council, in accordance with the provisions
of Article 11 of the Covenant, to take under consideration any
complaint as to infraction of the above undertakings which is made to
it by one or more of the States parties to the dispute. Should the
Council be of opinion that the complaint requires investigation, it
shall, if it deems it expedient, arrange for enquiries and
investigations in one or more of the countries concerned. Such
enquiries and investigations shall be carried
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Les mesures ainsi prises par li Conseil sont destinées uniquement à
faciliter li règlement pacifique des différends et ne doivent préjuger
en rien du règlement lui-même.
Si, à la suite de ces enquêtes et investigations, une infraction
quelconque aux dispositions du premier alinéa du présent article est
établie, il est du devoir du Conseil de sommer l'Etat ou les Etats
coupables de l'infraction de la faire disparaître. Si l'Etat ou les
Etats en question ne se conforment pas à cette sommation, le Conseil
déclare lesdits Etats coupables d'une violation du Pacte ou du présent
Protocole et doit décider les mesures à prendre en vue de faire cesser
au plus tôt une situation de nature à menacer la paix du monde.
Pour l'application du présent article, le Conseil prendra sa décision à
la majorite des deux tiers.
ARTICLE 8.
Les Etats signataires s'engagent à s'abstenir de toute action qui
pourrait constituer une menace d'agression contre un autre Etat.
Dans li cas où un des Etats signataires estime qu'un autre Etat procédé
à des préparatifs de guerre, il a le droit d'en saisir le Conseil.
Celui-ci, après avoir vérifié les faits, opère comme il est dit à
l'article 7, alinéas 2, 4 et 5.
ARTICLE 9.
L'existence de zones demilitarisées étant de nature à prévenir les
agressions et à en faciliter la détermination sans équivoque
conformément à l'article 10 ci-dessous, l'établissement de pareilles
zones est recommandé entre les Etats qui y seraient également
consentants, comme un moyen d'éviter une violation du présent Protocole.
Les zones démilitarisées déjà existantes en vertu de certains Traités
ou Conventions, ou qui seraient établies à l'avenir entre Etats
également consentants, pourront faire l'objet d'un contrôle temporaire
ou permanent, organisé par le Conseil, à la demande et aux frais d'un
ou de plusieurs Etats limitrophes.
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out with the utmost possible despatch, and the signatory States
undertake to afford every facility for carrying them out.
The sole object of measures taken by the Council as above provided is
to facilitate the pacific settlement of disputes and they shall in no
way prejudge the actual settlement.
If the result of such enquiries and investigations is to establish an
infraction of the provisions of the first paragraph of the present
Article, it shall be the duty of the Council to summon the State or
States guilty of the infraction to put an end thereto. Should the
State or States in question fail to comply with such summons, the
Council shall declare them to be guilty of a violation of the Covenant
or of the present Protocol, and shall decide upon the measures to be
taken with a view to end as soon as possible a situation of a nature to
threaten the peace of the world.
For the purposes of the present Article decisions of the Council may be
taken by a two-thirds majority.
ARTICLE 8.
The signatory States undertake to abstain from any act which might
constitute a threat of aggression against another State.
If one of the signatory States is of opinion that another State is
making preparations for war, it shall have the right to bring the
matter to the notice of the Council.
The Council, if it ascertains that the facts are as alleged, shall
proceed as provided in paragraphs 2, 4, and 5 of Article 7.
ARTICLE 9.
The existence of demilitarised zones being calculated to prevent
aggression and to facilitate a definite finding of the nature provided
for in Article 10 below, the establishment of such zones between States
mutually consenting thereto is recommended as a means of avoiding
violations of the present Protocol.
The demilitarised zones already existing under the terms of certain
treaties or conventions, or which may be established in future between
States mutually consenting thereto, may at the request and at the
expense of one or more of the conterminous States, be placed under a
temporary or permanent system of supervision to be organized by the
Council.
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ARTICLE 10.
Est agresseur tout Etat qui recourt à la guerre en violation des
engagements prévus au Pacte ou au présent Protocole. Est assimilée au
recours à la guerre la violation du statut d'une zone démilitarisée.
Dans le cas d'hostilités engagées, est présumé agresseur, sauf décision
contraire du Conseil prise à l'unanimité:
1. Tout Etat qui aura refusé de soumettre le différend à la
procédure pour règlement pacifique prévue aux articles 13 et 15
du Pacte, complétés par le présent Protocole--ou qui aura refusé
de se conformer, soit à une décision judiciaire ou arbitrale,
soit à une recommandation unanime du Conseil--ou qui aura passé
outre à un rapport unanime du Conseil, à une décision judiciaire
ou arbitrale reconnaissant que le différend qui s'est élevé
entre lui et l'autre Etat belligérant porte sur une question que
le Droit international laisse à la compétence exclusive de cet
Etat; toutefois, dans ce dernier cas, l'Etat ne sera présumé
agresseur que s'il n'a pas soumis auparavant la question au
Conseil ou à l'Assemblée, conformément à l'article 11 du Pacte.
2. Tout Etat qui aura violé une des mesures provisoires
prescrites par le Conseil pendant la période de procédure, visées
à l'article 7 du présent Protocole.
Hors les hypothèses visées aux numéros 1 et 2 du présent article, si le
Conseil n'a pu déterminer dans le plus bref délai l'agresseur, il aura
l'obligation de prescrire aux belligérants un armistice dont il fixera
les conditions à la majorité des deux tiers et dont il surveillera
l'observation.
Tout belligérant ayant refusé l'armistice ou en ayant violé les
conditions, sera réputé agresseur.
Le Conseil enjoindra aux Etats signataires d'appliquer sans retard
contre l'agresseur les sanctions visées à l'article 11 du présent
Protocole, et tout Etat signataire, ainsi requis, sera dès lors fondé à
exercer les droits d'un belligérant.
{145}
ARTICLE 10.
Every State which resorts to war in violation of the undertakings
contained in the Covenant or in the present Protocol is an aggressor.
Violation of the rules laid down for a demilitarised zone shall be held
equivalent to resort to war.
In the event of hostilities having broken out, any State shall be
presumed to be an aggressor, unless a decision of the Council, which
must be taken unanimously, shall otherwise declare:
1. If it has refused to submit the dispute to the procedure of
pacific settlement provided by Articles 13 and 15 of the Covenant
as amplified by the present Protocol, or to comply with a judicial
sentence or arbitral award or with a unanimous recommendation of
the Council, or has disregarded a unanimous report of the Council,
a judicial sentence or an arbitral award recognising that the
dispute between it and the other belligerent State arises out of
a matter which by international law is solely within the domestic
jurisdiction of the latter State; nevertheless, in the last case
the State shall only be presumed to be an aggressor if it has not
previously submitted the question to the Council or the Assembly,
in accordance with Article 11 of the Covenant.
2. If it has violated provisional measures enjoined by the Council
for the period while the proceedings are in progress as
contemplated by Article 7 of the present Protocol.
Apart from the cases dealt with in paragraphs 1 and 2 of the present
Article, if the Council does not at once succeed in determining the
aggressor, it shall be bound to enjoin upon the belligerents an
armistice, and shall fix the terms, acting, if need be, by a two-thirds
majority and shall supervise its execution.
Any belligerent which has refused to accept the armistice or has
violated its terms shall be deemed an aggressor.
The Council shall call upon the signatory States to apply forthwith
against the aggressor the sanctions provided by Article 11 of the
present Protocol, and any signatory State thus called upon shall
thereupon be entitled to exercise the rights of a belligerent.
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ARTICLE 11.
Dès que le Conseil a fait aux Etats signataires l'injonction prévue au
dernier alinéa de l'article 10 du présent Protocole, les obligations
desdits Etats en ce qui concerne les sanctions de toute nature visées
aux alinéas 1 et 2 de l'article 16 du Pacte, deviennent immédiatement
opérantes afin que ces sanctions puissent porter leurs effets contre
l'agresseur sans aucun retard.
Ces obligations doivent être interprétées en ce sens que chacun des
Etats signataires est tenu de collaborer loyalement et effectivement
pour faire respecter le Pacte de la Société des Nations et pour
s'opposer à tout acte d'agression dans la mésure que lui permettent sa
situation géographique et les conditions spéciales de ses armements.
Conformément à l'alinéa 3 de l'article 16 du Pacte, les Etats
signataires prennent l'engagement, individuel et collectif, de venir à
l'aide de l'Etat attaqué ou menacé, et de se prêter un mutuel appui,
grâce à des facilités et à des échanges réciproques en ce qui concerne
le ravitaillement en matières premières et denrées de toute nature, les
ouvertures de crédit, les transports et le transit et, à cet effet, de
prendre toutes mesures en leur pouvoir pour maintenir la sécurité des
communications terrestres et maritimes de l'Etat attaqué ou menacé.
Si les deux Parties au différend sont agresseurs au sens de l'article
10, les sanctions économiques et financières s'appliquent a l'une et à
l'autre.
ARTICLE 12.
En raison de la complexité des conditions dans lesquelles le Conseil
pourrait être appelé à remplir les fonctions visées à l'article 11
ci-dessus concernant les sanctions économiques et financières et pour
préciser les garanties qui sont offertes par le présent Protocole aux
Etats signataires, le Conseil invitera immédiatement les organisations
économiques et financières de la Société des Nations à procéder à une
étude et à
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ARTICLE 11.
As soon as the Council has called upon the signatory States to apply
sanctions, as provided in the last paragraph of Article 10 of the
present Protocol, the obligations of the said States, in regard to the
sanctions of all kinds mentioned in paragraphs 1 and 2 of Article 16 of
the Covenant, will immediately become operative in order that such
sanctions may forthwith be employed against the aggressor.
Those obligations shall be interpreted as obliging each of the
signatory States to co-operate loyally and effectively in support of
the Covenant of the League of Nations, and in resistance to any act of
aggression, in the degree which its geographical position and its
particular situation as regards armaments allow.
In accordance with paragraph 3 of Article 16 of the Covenant the
signatory States give a joint and several undertaking to come to the
assistance of the State attacked or threatened, and to give each other
mutual support by means of facilities and reciprocal exchanges as
regards the provision of raw materials and supplies of every kind,
openings of credits, transport and transit, and for this purpose to
take all measures in their power to preserve the safety of
communications by land and by sea of the attacked or threatened State.
If both parties to the dispute are aggressors within the meaning of
Article 10, the economic and financial sanctions shall be applied to
both of them.
ARTICLE 12.
In view of the complexity of the conditions in which the Council may be
called upon to exercise the functions mentioned in Article 11 of the
present Protocol concerning economic and financial sanctions, and in
order to determine more exactly the guarantees afforded by the present
Protocol to the signatory States, the Council shall forthwith invite
the economic and financial organisations of the League of Nations to
consider and report
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soumettre un rapport sur la nature des dispositions à prendre pour
mettre en vigueur les sanctions et mesures de coopération économique et
financière, visées à l'article 16 du Pacte et à l'article 11 du present
Protocole.
En possession de ces informations, le Conseil établira par ses
organismes compétents:
1. les plans d'action destinés à faire jouer les sanctions
economiques et financières contre un Etat agresseur;
2. les plans de coopération économique et financière entre
un Etat attaqué et les divers Etats lui portant assistance,
et il communiquera ces plans aux Membres de la Société et aux autres
Etats signataires.
ARTICLE 13.
Eu égard aux sanctions militaires, navales et aériennes dont
l'application éventuelle est prévue à l'article 16 du Pacte et à
l'article 11 du présent Protocole, le Conseil aura qualité pour
recevoir les engagements d'Etats déterminant par avance les forces
militaires, navales et aériennes que ces Etats pourraient faire
intervenir immédiatement afin d'assurer l'exécution des obligations
dérivant à ce sujet du Pacte et du présent Protocole.
Dès que le Conseil a fait aux Etats signataires l'injonction prévue au
dernier alinéa de l'article 10 ci-dessus, ces Etats peuvent en outre
faire entrer en ligne, suivant les accords antérieurement faits, leurs
forces militaires, navales et aériennes au secours d'un Etat
particulier, victime de l'agression.
Les accords visés au précédent alinéa sont enregistrés et publiés par
le Secrétariat de la Société des Nations; ils restent ouverts à tout
Etat Membre de la Société, qui voudrait y accéder.
ARTICLE 14.
Le Conseil a seul qualité pour déclarer qui'l y a lieu de faire cesser
l'application des sanctions et de rétablir les conditions normales.
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as to the nature of the steps to be taken to give effect to the
financial and economic sanctions and measures of co-operation
contemplated in Article 16 of the Covenant and in Article 11 of this
Protocol.
When in possession of this information, the Council shall draw up
through its competent organs:
1. Plans of action for the application of the economic and
financial sanctions against an aggressor State;
2. Plans of economic and financial co-operation between a State
attacked and the different States assisting it;
and shall communicate these plans to the Members of the League and to
the other signatory States.
ARTICLE 13.
In view of the contingent military, naval and air sanctions provided
for by Article 16 of the Covenant and by Article 11 of the present
Protocol, the Council shall be entitled to receive undertakings from
States determining in advance the military, naval and air forces which
they would be able to bring into action immediately to ensure the
fulfilment of the obligations in regard to sanctions which result from
the Covenant and the present Protocol.
Furthermore, as soon as the Council has called upon the signatory
States to apply sanctions, as provided in the last paragraph of Article
10 above, the said States may, in accordance with any agreements which
they may previously have concluded, bring to the assistance of a
particular State, which is the victim of aggression, their military,
naval and air forces.
The agreements mentioned in the preceding paragraph shall be registered
and published by the Secretariat of the League of Nations. They shall
remain open to all States Members of the League which may desire to
accede thereto.
ARTICLE 14.
The Council shall alone be competent to declare that the application of
sanctions shall cease and normal conditions be re-established.
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ARTICLE 15.
Pour répondre à l'esprit du présent Protocole, les Etats signataires
conviennent que la totalité des frais de toute opération d'ordre
militaire, naval ou aérien, entreprise pour la répréssion d'une
agression, conformément aux termes de ce Protocole, ainsi que la
réparation de tous dommages subis par les personnes civiles ou
militaires, et de tous dommages matériels occasionnés par les
opérations de part et d'autre, seront supportés par l'Etat agresseur
jusqu'à l'extréme limite de sa capacité.
Toutefois, vu l'article 10 du Pacte, il ne pourra, comme suite à
l'application des sanctions visées au présent Protocole, être porté
atteinte en aucun cas à l'intégrité territoriale ou à l'indépendance
politique de l'Etat agresseur.
ARTICLE 16.
Les Etats signataires conviennent qu'en cas de différend entre un ou
plusieurs parmi eux et un ou plusieurs Etats non signataires du présent
Protocole értangers à la Société des Nations, ces Etats étrangers
seront invités, aux conditions prévues à l'article 17 du Pacte, à se
soumettre aux obligations acceptées par les signataires du présent
Protocole aux fins de règlement pacifique.
Si l'Etat invité, refusant d'accepter les dites conditions et
obligations, recourt à la guerre centre un Etat signataire, les
dispositions de l'article 16 du Pacte, telles qu'elles sont précisées
par le présent Protocole, lui sont applicables.
ARTICLE 17.
Les Etats signataires s'engagent à prendre part à une Conférence
internationale pour la réduction des armements qui devra être convoquée
par le Conseil et qui se réunira à Geneve le lundi 15 juin 1925. Tous
autres Etats, Membres ou non de la Société, seront invités à cette
Conférence.
En vue de la convocation de la Conférence, le Conseil
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ARTICLE 15.
In conformity with the spirit of the present Protocol the signatory
States agree that the whole cost of any military, naval or air
operations undertaken for the repression of an aggression under the
terms of the Protocol, and reparation for all losses suffered by
individuals, whether civilians or combatants, and for all material
damage caused by the operations of both sides, shall be borne by the
aggressor State up to the extreme limit of its capacity.
Nevertheless, in view of Article 10 of the Covenant, neither the
territorial integrity nor the political independence of the aggressor
State shall in any case be affected as the result of the application of
the sanctions mentioned in the present Protocol.
ARTICLE 16.
The signatory States agree that in the event of a dispute between one
or more of them and one or more States which have not signed the
present Protocol and are not Members of the League of Nations, such
non-Member States shall be invited, on the conditions contemplated in
Article 17 of the Covenant, to submit, for the purpose of a pacific
settlement, to the obligations accepted by the States signatories of
the present Protocol.
If the State so invited, having refused to accept the said conditions
and obligations, resorts to war against a signatory State, the
provisions of Article 16 of the Covenant, as defined by the present
Protocol, shall be applicable against it.
ARTICLE 17.
The signatory States undertake to participate in an International
Conference for the Reduction of Armaments which shall be convened by
the Council and shall meet at Geneva on Monday, June 15th, 1925. All
other States, whether Members of the League or not, shall be invited to
this Conference.
In preparation for the convening of the Conference, the
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préparera, en tenant compte des engagements prévus aux articles 11 et
13 du présent Protocole, un programme général pour la reduction et la
limitation des armements qui sera mis à la disposition de cette
Conférence et communiqué aux gouvernements le plus tôt possible, et au
plus tard trois mois avant la réunion.
Si au moins la majorité des Membres représentés en permanence au
Conseil et dix autres Membres de la Société n'ont pas déposé leur
ratification pour le 1er mai 1925, le Sécretaire général de la Société
devra prendre immédiatement l'avis du Conseil pour savoir s'il doit
annuler les invitations ou simplement ajourner la Conférence à une date
ultérieure, qui sera fixée par le Conseil pour permettre la réunion du
nombre necessaire de ratifications.
ARTICLE 18.
Toutes les fois que, dans l'article 10 ou dans toutes autres
dispositions du présent Protocole, il est fait mention d'une décision
du Conseil, elle s'entend dans le sens de l'article 15 du Pacte, à
savoir que le vote des représentants des Parties au différend ne compte
pas dans le calcul de l'unanimité ou de la majorité requise.
ARTICLE 19.
A défaut de stipulations expresses, le présent Protocole n'affecte pas
les droits et les obligations des Membres de la Société des Nations,
tels qu'ils résultent du Pacte.
ARTICLE 20.
Tout différend relatif à l'interpretation du présent Protocole sera
soumis à la Cour permanente de Justice Internationale.
ARTICLE 2l.
Le présent Protocole, dont les textes français et anglais feront foi,
sera ratifié.
{153}
Council shall draw up with due regard to the undertakings contained in
Articles 11 and 13 of the present Protocol a general programme for the
reduction and limitation of armaments, which shall be laid before the
Conference and which shall be communicated to the Governments at the
earliest possible date, and at the latest three months before the
Conference meets.
If by May 1st, 1925, ratifications have not been deposited by at least
a majority of the permanent Members of the Council and ten other
Members of the League, the Secretary-General of the League shall
immediately consult the Council as to whether he shall cancel the
invitations or merely adjourn the Conference to a subsequent date to be
fixed by the Council so as to permit the necessary number of
ratifications to be obtained.
ARTICLE 18.
Wherever mention is made in Article 10, or in any other provision of
the present Protocol, of a decision of the Council, this shall be
understood in the sense of Article 15 of the Covenant, namely that the
votes of the representatives of the parties to the dispute shall not be
counted when reckoning unanimity or the necessary majority.
ARTICLE 19.
Except as expressly provided by its terms, the present Protocol shall
not affect in any way the rights and obligations of Members of the
League as determined by the Covenant.
ARTICLE 20.
Any dispute as to the interpretation of the present Protocol shall be
submitted to the Permanent Court of International Justice.
ARTICLE 21.
The present Protocol, of which the French and English texts are both
authentic, shall be ratified.
{154}
Le dépôt des ratifications sera effectué au Secrétariat de la Société
des Nations le plus tôt qu'il sera possible.
Les Etats dont le gouvernement a son siège hors d'Europe auront la
faculté de se borner à faire connaître au Secrétariat de la Societe des
Nations que leur ratification a été donnée et, dans ce cas, ils devront
en transmettre l'instrument aussitôt que faire se pourra.
Dès que la majorité des Membres représentés en permanence au Conseil et
dix autres Membres de la Société auront déposé ou effectué leur
ratification, un procès-verbal sera dressé par le Secrétariat pour le
constater.
La mise en vigueur du Protocole aura lieu après que ce procès-verbal
aura été dressé et dès que le plan de réduction des armements aura été
adopté par la Conférence prevue à l'article 17.
Si, dans un délai, à fixer par ladite Conférence après l'adoption du
plan de réduction des armements, ce plan n'a pas été exécuté, il
appartiendra au Conseil de le constater; par l'effet de cette
constatation le présent Protocole deviendra caduc.
Les conditions en vertu desquelles le Conseil pourra constater que le
plan établi par la Conférence internationale pour la réduction des
armements n'a pas été exécuté et que, par conséquent, le présent
Protocole est devenu caduc, seront définies par la Conférence elle-même.
Tout Etat signataire qui ne se conformerait pas, après l'expiration du
délai fixé par la Conférence, au plan adopté par elle, ne pourra
bénéficier des dispositions du présent Protocole.
En foi de quoi les Soussignés, dûment autorisés à cet effet, ont signé
le présent Protocole.
Fait à Genève, le deux octobre, mil neuf cent vingt-quatre, en un seul
exemplaire qui restera déposé dans les archives du Secretariat de la
Société des Nations et qui sera enregistré par lui à la date de son
entrée en vigueur.
{155}
The deposit of ratifications shall be made at the Secretariat of the
League of Nations as soon as possible.
States of which the seat of government is outside Europe will be
entitled merely to inform the Secretariat of the League of Nations that
their ratification has been given; in that case, they must transmit the
instrument of ratification as soon as possible.
So soon as the majority of the permanent Members of the Council and ten
other Members of the League have deposited or have effected their
ratifications, a _procès-verbal_ to that effect shall be drawn up by
the Secretariat.
After the said _procès-verbal_ has been drawn up, the Protocol shall
come into force as soon as the plan for the reduction of armaments has
been adopted by the Conference provided for in Article 17.
If within such period after the adoption of the plan for the reduction
of armaments as shall be fixed by the said Conference, the plan has not
been carried out, the Council shall make a declaration to that effect;
this declaration shall render the present Protocol null and void.
The grounds on which the Council may declare that the plan drawn up by
the International Conference for the Reduction of Armaments has not
been carried out, and that in consequence the present Protocol has been
rendered null and void, shall be laid down by the Conference itself.
A signatory State which, after the expiration of the period fixed by
the Conference, fails to comply with the plan adopted by the
Conference, shall not be admitted to benefit by the provisions of the
present Protocol.
In faith whereof the Undersigned, duly authorised for this purpose,
have signed the present Protocol.
DONE at Geneva, on the second day of October, nineteen hundred and
twenty-four, in a single copy, which will be kept in the archives of
the Secretariat of the League and registered by it on the date of its
coming into force.
{156}
ANNEX C.
GENERAL REPORT SUBMITTED TO THE FIFTH ASSEMBLY ON BEHALF OF THE FIRST
AND THIRD COMMITTEES BY M. POLITIS (GREECE) AND M. BENES
(CZECHOSLOVAKIA).
I
INTRODUCTION.
After being examined for several years by the Third Committee, the
problem of the reduction of armaments has this year suddenly assumed a
different, a wider and even an unexpected form.
Last year a draft Treaty of Mutual Assistance was prepared, which the
Assembly sent to the Members of the League for their consideration.
The replies from the Governments were to be examined by the Fifth
Assembly.
At the very beginning of its work, however, after a memorable debate,
the Assembly indicated to the Third Committee a new path. On September
6th, 1924, on the proposal of the Prime Ministers of France and Great
Britain, M. Edouard Herriot and Mr. Ramsay MacDonald, the Assembly
adopted the following resolution:
"The Assembly,
"Noting the declarations of the Governments represented,
observes with satisfaction that they contain the basis of
an understanding tending to establish a secure peace,
"Decides as follows:
"With a view to reconciling in the new proposals the
divergences between certain points of view which have been
expressed and, when agreement has been reached, to enable
an international conference upon armaments to be summoned
by the League of Nations at the earliest possible moment:
"(1) The Third Committee is requested to consider the
{157}
material dealing with security and the reduction of armaments,
particularly the observations of the Governments on the draft
Treaty of Mutual Assistance, prepared in pursuance of
Resolution XIV of the Third Assembly and other plans prepared
and presented to the Secretary-General since the publication
of the draft Treaty, and to examine the obligations contained
in the Covenant of the League in relation to the guarantees
of security which a resort to arbitration and a reduction of
armaments may require:
"(2) The First Committee is requested:
"(_a_) To consider, in view of possible amendments, the
articles in the Covenant relating to the settlement of
disputes;
"(_b_) To examine within what limits the terms of Article
36, paragraph 2, of the Statute establishing the Permanent
Court of International Justice might be rendered more
precise and thereby facilitate the more general acceptance
of the clause;
and thus strengthen the solidarity and the security of the
nations of the world by settling by pacific means all disputes
which may arise between States."
This resolution had two merits, first, that of briefly summarising all
the investigations made in the last four years by the different
organisations of the League in their efforts to establish peace and
bring about the reduction of armaments, and, secondly, that of
indicating the programme of work of the Committees in the hope that,
with the aid of past experience, they would at last attain the end in
view.
The Assembly had assigned to each Committee a distinct and separate
task; to the First Committee, the examination of the pacific settlement
of disputes by methods capable of being applied in every case; to the
Third Committee, the question of the security of nations considered as
a necessary preliminary condition for the reduction of their armaments.
Each Committee, after a general discussion which served to {158} detach
the essential elements from the rest of the problem, referred the
examination of its programme to a Sub-Committee, which devoted a large
number of meetings to this purpose.
The proposals of the Sub-Committees then led to very full debates by
the Committees, which terminated in the texts analysed below.
As, however, the questions submitted respectively to the two Committees
form part of an indivisible whole, contact and collaboration had to be
established between the Committees by means of a Mixed Committee of
nine members and finally by a joint Drafting Committee of four members.
For the same reason, the work of the Committees has resulted in a
single draft protocol accompanied by two draft resolutions for which
the Committees are jointly responsible.
Upon these various texts, separate reports were submitted, which, being
approved by the Committees respectively responsible for them, may be
considered as an official commentary by the Committees.
These separate reports have here been combined in order to present as a
whole the work accomplished by the two Committees and to facilitate
explanation.
Before entering upon an analysis of the proposed texts, it is expedient
to recall, in a brief historical summary, the efforts of the last four
years, of which the texts are the logical conclusion.
HISTORICAL STATEMENT.
The problem of the reduction of armaments is presented in Article 8 of
the Covenant in terms which reveal at the outset the complexity of the
question and which explain the tentative manner in which the subject
has been treated by the League of Nations in the last few years.
"The Members of the League recognise that the maintenance
of peace requires the reduction of national armaments to
{159}
the lowest point consistent with national safety and the
enforcement by common action of international obligations."
Here we see clearly expressed the need of reducing the burden which
armaments imposed upon the nations immediately after the war and of
putting a stop to the competition in armaments which was, in itself, a
threat to the peace of the world. But, at the same time, there is
recognised the duty of safeguarding the national security of the
Members of the League and of safeguarding it, not only by the
maintenance of a necessary minimum of troops, but also by the
co-operation of all the nations, by a vast organisation for peace.
Such is the meaning of the Covenant, which, while providing for
reduction of armaments properly so called, recognises at the same time
the need of _common action_, by all the Members of the League, with a
view to compelling a possible disturber of the peace to respect his
_international obligations_.
Thus, in this first paragraph of Article 8, which is so short but so
pregnant, mention is made of all the problems which have engaged the
attention of our predecessors and ourselves and which the present
Assembly has specially instructed us to solve, the problems of
_collective security_ and the _reduction of armaments_.
Taking up Article 8 of the Covenant, the First Assembly had already
outlined a programme. At its head it placed a pronouncement of the
Supreme Council:
"In order to diminish the economic difficulties of Europe,
armies should everywhere be reduced to a peace footing.
Armaments should be limited to the lowest possible figure
compatible with national security."
The Assembly also called attention to a resolution of the International
Financial Conference of Brussels held a short time before:
"Recommending to the Council of the League of Nations the
{160}
desirability of conferring at once with the several Governments
concerned with a view to securing a general reduction of the
crushing burdens which, on their existing scale, armaments
still impose on the impoverished peoples of the world, sapping
their resources and imperilling their recovery from the ravages
of war."
It also requested its two Advisory Commissions to set to work at once
to collect the necessary information regarding the problem referred to
in Article 8 of the Covenant.
From the beginning the work of the Temporary Mixed Commission and of
the Permanent Advisory Commission revealed the infinite complexity of
the question.
The Second Assembly limited its resolutions to the important, but none
the less (if one may say so) secondary, questions of traffic in arms
and their manufacture by private enterprise. It only touched upon the
questions of military expenditure and budgets in the form of
recommendations and, as regards the main question of reduction of
armaments, it confined itself to asking the Temporary Mixed Commission
to formulate a definite scheme.
It was between the Second and Third Assemblies that the latter
Commission, which was beginning to get to grips with the various
problems, revealed their constituent elements. In its report it placed
on record that:
"The memory of the world war was still maintaining in many
countries a feeling of insecurity, which was represented
in the candid statements in which, at the request of the
Assembly, several of them had put forward the requirements
of their national security, and the geographical and
political considerations which contributed to shape their
policy in the matter of armaments."
At the same time, however, the Commission stated:
"Consideration of these statements as a whole has clearly
revealed not only the sincere desire of the Governments
to reduce national armaments and the corresponding
{161}
expenditure to a minimum, but also the importance of the results
achieved. These facts"--according to the Commission--"are
indisputable, and are confirmed moreover, by the replies
received from Governments to the Recommendation of the Assembly
regarding the limitation of military expenditure."
That is the point we had reached _two years ago_; there was a
_unanimous desire to reduce armaments_. Reductions, though as yet
inadequate, had been begun, and there was a _still stronger desire to
ensure the security of the world_ by a stable and permanent
organisation for peace.
That was the position which, after long discussions, gave rise _at the
Third Assembly to the famous Resolution XIV_ and at the Fourth Assembly
_to the draft Treaty of Mutual Assistance_, for which we are now
substituting the Protocol submitted to the Fifth Assembly.
What progress has been made during these four years?
Although the Treaty of Mutual Assistance was approved in principle by
eighteen Governments, it gave rise to certain misgivings. We need only
recall the most important of these, hoping that a comparison between
them and an analysis of the new scheme will demonstrate that the First
and Third Committees have endeavoured, with a large measure of success,
to dispose of the objections raised and that the present scheme
consequently represents an immense advance on anything that has
hitherto been done.
In the first place, a number of Governments or delegates to the
Assembly argued that the guarantees provided by the draft Treaty of
Mutual Assistance did not imply with sufficient definiteness the
reduction of armaments which is the ultimate object of our work.
The idea of the Treaty was to give effect to Article 8 of the Covenant,
but many persons considered that it did not, in fact, secure the
automatic execution of that article. Even if a reduction of armaments
was achieved by its means, the amount {162} of the reduction was left,
so the opponents of the Treaty urged, to the estimation of each
Government, and there was nothing to show that it would be considerable.
With equal force many States complained that no provision had been made
for the development of the _juridicial and moral elements of the
Covenant_ by the side of material guarantees. The novel character of
the charter given to the nations in 1919 lay essentially in the advent
of a moral solidarity which foreshadowed the coming of a new era. That
principle ought to have, as its natural consequence, _the extension of
arbitration and international jurisdiction_, without which no human
society can be solidly grounded. A considerable portion of the
Assembly asked that efforts should also be made in this direction. The
draft Treaty seemed from this point of view to be insufficient and
ill-balanced.
Finally, the articles relating to partial treaties gave rise, as you
are aware, to certain objections. Several Governments considered that
they would lead to the establishment of groups of Powers animated by
hostility towards other Powers or groups of Powers and that they would
cause political tension. The absence of the barriers of compulsory
arbitration and judicial intervention was evident here as everywhere
else.
Thus, by a logical and gradual process, there was elaborated the system
at which we have now arrived.
The reduction of armaments required by the Covenant and demanded by the
general situation of the world to-day led us to consider the question
of security as a necessary complement to disarmament.
The support demanded from different States by other States less
favourably situated had placed the former under the obligation of
asking for a sort of moral and legal guarantee that the States which
have to be supported would act in perfect good faith and would always
endeavor to settle their disputes by pacific means.
It became evident, however, with greater clearness and force {163} than
ever before, that if the security and effective assistance demanded in
the event of aggression was the condition _sine quâ non_ of the
reduction of armaments, it was at the same time the necessary
complement of the pacific settlement of international disputes, since
the non-execution of a sentence obtained by pacific methods of
settlement would necessarily drive the world back to the system of
armed force. Sentences imperatively required sanctions or the whole
system would fall to the ground.
_Arbitration was therefore considered by the Fifth Assembly to be the
necessary third factor, the complement of the two others with which it
must be combined in order to build up the new system set forth in the
Protocol._
Thus, after five years' hard work, we have decided to propose to the
Members of the League _the present system of arbitration, security and
reduction of armaments_--a system which we regard as being complete and
sound.
That is the position with which the Fifth Assembly has to deal to-day.
The desire to arrive at a successful issue is unanimous. A great
number of the decisions adopted in the past years have met with general
approval. There has arisen a thoroughly clear appreciation of the
undoubted gaps which have to be filled and of the reasonable
apprehensions which have to be dissipated. Conditions have therefore
become favourable for arriving at an agreement.
An agreement has been arrived at on the basis of the draft Protocol
which is now submitted to you for consideration.
{164}
II
ANALYSIS OF THE SCHEME.
1.--WORK OF THE FIRST COMMITTEE.
(_Rapporteur_: M. Politis)
DRAFT PROTOCOL FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES.
_Preamble._
The object of the Protocol, which is based upon the resolution of
September 6th, 1924, is to facilitate the reduction and limitation of
armaments provided for in Article 8 of the Covenant of the League of
Nations by guaranteeing the security of States through the development
of methods for the pacific settlement of all international disputes and
the effective condemnation of aggressive war.
These general ideas are summarised in the preamble of the Protocol.
COMPULSORY ARBITRATION.
(_Articles 1 to 6, 10, 16, 18 and 19 of the Protocol_)
1.--INTRODUCTION.
Compulsory arbitration is the fundamental basis of the proposed system.
It has seemed to be the only means of attaining the ultimate aim
pursued by the League of Nations, viz. the establishment of a pacific
and legal order in the relations between peoples.
The realisation of this great ideal, to which humanity aspires with a
will which has never been more strongly affirmed, presupposes, as an
indispensable condition, the elimination of war, the extension of the
rule of law and the strengthening of the sentiment of justice.
The Covenant of the League of Nations erected a wall of protection
around the peace of the world, but it was a first attempt {165} at
international organisation and it did not succeed in closing the circle
sufficiently thoroughly to leave no opening for war. It reduced the
number of possible wars. It did not condemn them all. There were some
which it was forced to tolerate. Consequently, there remained, in the
system which it established, numerous fissures, which constituted a
grave danger to peace.
The new system of the Protocol goes further. It closes the circle
drawn by the Covenant; it prohibits all wars of aggression. Henceforth
no purely private war between nations will be tolerated.
This result is obtained by strengthening the pacific methods of
procedure laid down in the Covenant. The Protocol completes them and
extends them to all international disputes without exception, by making
arbitration compulsory.
In reality, the word "arbitration" is used here in a somewhat different
sense from that which it has generally had up to now. It does not
exactly correspond with the definition given by the Hague Conferences
which, codifying a century-old custom, saw in it "the settlement of
disputes between States by judges of their own choice and on the basis
of respect for law" (Article 37 of the Convention of October 18th,
1907, for the Pacific Settlement of International Disputes).
The arbitration which is now contemplated differs from this classic
arbitration in various respects:
(_a_) It is only part of a great machinery of pacific settlement.
It is set up under the auspices and direction of the Council of
the League of Nations.
(_b_) It is not only an instrument for the administration of
justice. It is, in addition and above all, an instrument of
peace. The arbitrators must no doubt seek in the first place
to apply the rules and principles of international law. This
is the reason why, as will be seen below, they are bound to
consult the Permanent Court of International Justice if one
of the parties so requests. But if international law
furnishes no rule or principle applicable to the particular
{166}
case, they cannot, like ordinary arbitrators, refuse to give a
decision. They are bound to proceed on grounds of equity, for
in our system arbitration is always of necessity to lead to a
definitive solution of the dispute. This is not to be
regretted, for to ensure the respect of law by nations it is
necessary first that they should be assured of peace,
(_c_) It does not rest solely upon the loyalty and good faith
of the parties. To the moral and legal force of an ordinary
arbitration is added the actual force derived from the
international organisation of which the kind of arbitration
in question forms one of the principal elements; the absence
of a sanction which has impeded the development of compulsory
arbitration is done away with under our system.
In the system of the Protocol, the obligation to submit disputes to
arbitration is sound and practical because it has always a sanction.
Its application is automatically ensured, by means of the intervention
of the Council; in no case can it be thrown on one side through the
ill-will of one of the disputant States. The awards to which it leads
are always accompanied by a sanction, adapted to the circumstances of
the case and more or less severe according to the degree of resistance
offered to the execution of the sentence.
{167}
2.--NATURE OF THE RULES OP THE PROTOCOL.
_Article 1._
The rules laid down in the Protocol do not all have the same scope or
value for the future.
As soon as the Protocol comes into force, its provisions will become
compulsory as between the signatory States, and in its dealings with
them the Council of the League of Nations will at once be able to
exercise all the rights and fulfil all the duties conferred upon it.
As between the States Members of the League of Nations, the Protocol
may in the first instance create a dual régime, for, if it is not
immediately accepted by them all, the relations between signatories and
non-signatories will still be governed by the Covenant alone while the
relations between signatories will be governed by the Protocol as well.
But this situation cannot last. Apart from the fact that it may be
hoped that all Members of the League will adhere to it, the Protocol is
in no sense designed to create among the States which accept it a
restricted League capable of competing with or opposing in any way the
existing League. On the contrary, such of its provisions as relate to
articles of the Covenant will, as soon as possible, be made part of the
general law by amendment of the Covenant effected in accordance with
the procedure for revision laid down in Article 26 thereof. The
signatory States which are Members of the League of Nations undertake
to make every effort to this end.
When the Covenant has been amended in this way, some parts of the
Protocol will lose their value as between the said States: some of them
will have enriched the Covenant, while others, being temporary in
character, will have lost their object.
The whole Protocol will remain applicable to relations between
signatory States which are Members of the League of Nations and
signatory States outside the League, or between States coming within
the latter category.
{168}
It should be added that, as the League realises its aim of
universality, the amended Covenant will take the place, as regards all
States, of the separate régime of the Protocol.
3.--CONDEMNATION OF AGGRESSIVE WAR.
_Article 2._
The general principle of the Protocol is the prohibition of aggressive
war.
Under the Covenant, while the old unlimited right of States to make war
is restricted, it is not abolished. There are cases in which the
exercise of this right is tolerated; some wars are prohibited and
others are legitimate.
In future the position will be different. In no case is any State
signatory of the Protocol entitled to undertake on its own sole
initiative an offensive war against another signatory State or against
any non-signatory State which accepts all the obligations assumed by
the signatories under the Protocol.
The prohibition affects only aggressive war. It does not, of course,
extend to defensive war. The right of legitimate self-defence
continues, as it must, to be respected. The State attacked retains
complete liberty to resist by all means in its power any acts of
aggression of which it may be the victim. Without waiting for the
assistance which it is entitled to receive from the international
community, it may and should at once defend itself with its own force.
Its interests are identified with the general interest. This is a
point on which there can be no doubt.
The same applies when a country employs force with the consent of the
Council or the Assembly of the League of Nations under the provisions
of the Covenant and the Protocol. This eventuality may arise in two
classes of cases: either a State may take part in the collective
measures of force decided upon by the League of Nations in aid of one
of its Members which is the victim of aggression; or a State may employ
force with the authorisation of the Council or the Assembly in order to
enforce {169} a decision given in its favour. In the former case, the
assistance given to the victim of aggression is indirectly an act of
legitimate self-defence. In the latter, force is used in the service
of the general interest, which would be threatened if decisions reached
by a pacific procedure could be violated with impunity. In all these
cases the country resorting to war is not acting on its private
initiative but is in a sense the agent and the organ of the community.
It is for this reason that we have not hesitated to speak of the
exceptional authorisation of war. It has been proposed that the word
"force" should be used in order to avoid any mention of "war"--in order
to spare the public that disappointment which it might feel when it
found that, notwithstanding the solemn condemnation of war, war was
still authorised in exceptional cases. We preferred, however, to
recognise the position frankly by retaining the expression "resort to
war" which is used in the Covenant. If we said "force" instead of
"war," we should not be altering the facts in any way. Moreover, the
confession that war is still possible in specific cases has a certain
value, because the term describes a definite and well-understood
situation, whereas the expression "resort to force" would be liable to
be misunderstood, and also because it emphasises the value of the
sanctions at the disposal of the community of States bound by the
Protocol.
4.--COMPULSORY JURISDICTION OF THE PERMANENT COURT OF INTERNATIONAL
JUSTICE.
_Article 3._
The general principle of the Protocol could not be accepted unless the
pacific settlement of all international disputes without distinction
were made possible.
This solution has been found, in the first place, in the extension of
the compulsory jurisdiction of the Permanent Court of International
Justice.
{170}
According to its Statute, the jurisdiction of the Court is, in
principle, optional. On the other hand, Article 36, paragraph 2, of
the Statute, offers States the opportunity of making the jurisdiction
compulsory in respect of all or any of the classes of legal disputes
affecting: (_a_) the interpretation of a Treaty; (_b_) any question of
international law; (_c_) the existence of any fact which, if
established, would constitute a breach of an international obligation;
(_d_) the nature or extent of the reparation to be made for the breach
of an international obligation. States have only to declare their
intention through the special Protocol annexed to the Statute. The
undertaking then holds good in respect of any other State which assumes
the same obligation. It may be given either unconditionally or on
condition of reciprocity on the part of several or certain other
States; either permanently or for a fixed period.
So far such compulsory jurisdiction has only been accepted by a small
number of countries. The majority of States have abstained because
they did not see their way to accept compulsory jurisdiction by the
Court in certain cases falling within one or another of the classes of
dispute enumerated above, and because they were not sure whether, in
accepting, they could make reservations to that effect.
It was for this reason that the Assembly in its resolution of September
6th, requested the First Committee to render more precise the terms of
Article 36, paragraph 2, in order to facilitate its acceptance.
Careful consideration of the article has shown that it is sufficiently
elastic to allow of all kinds of reservations. Since it is open to the
States to accept compulsory jurisdiction by the Court in respect of
certain of the classes of dispute mentioned and not to accept it in
respect of the rest, it is also open to them only to accept it in
respect of a portion of one of those classes; rights need not be
exercised in their full extent. In giving the undertaking in question,
therefore, States are free to declare that it {171} will not be
regarded as operative in those cases in which they consider it to be
inadmissible.
We can imagine possible and therefore legitimate, reservations either
in connection with a certain class of dispute or, generally speaking,
in regard to the precise stage at which the dispute may be laid before
the Court. While we cannot here enumerate all the conceivable
reservations, it may be worth while to mention merely as examples those
to which we referred in the course of our discussions.
From the class of disputes relating to "the interpretation of a treaty"
there may be excluded, for example, disputes as to the interpretation
of certain specified classes of treaty such as political treaties,
peace treaties, etc.
From the class of disputes relating to "any point of international law"
there may be excluded, for example, disputes as to the application of a
political treaty, a peace treaty, etc., or as to any specified question
or disputes which might arise as the outcome of hostilities initiated
by one of the signatory States in agreement with the Council or the
Assembly of the League of Nations.
Again, there are many possible reservations as to the precise stage at
which a dispute may be laid before the Court. The most far-reaching of
these would be to make the resort to the Court in connection with every
dispute in respect of which its compulsory jurisdiction is recognised
contingent upon the establishment of an agreement for submission of the
case which, failing agreement between the parties, would be drawn up by
the Court itself, the analogy of the provisions of the Hague Convention
of 1907 dealing with the Permanent Court of Arbitration being thus
followed.
It might also be stated that the recognition of the compulsory
jurisdiction of the Court does not prevent the parties to the dispute
from agreeing to resort to a preliminary conciliation procedure before
the Council of the League of Nations or any other {172} body selected
by them, or to submit their disputes to arbitration in preference to
going before the Court.
A State might also, while accepting compulsory jurisdiction by the
Court, reserve the right of laying disputes before the Council of the
League with a view to conciliation in accordance with paragraphs 1-3 of
Article 15 of the Covenant, with the proviso that neither party might,
during the proceedings before the Council, take proceedings against the
other in the Court.
It will be seen, therefore, that there is a very wide range of
reservations which may be made in connection with the undertaking
referred to in Article 36, paragraph 2. It is possible that
apprehensions may arise lest the right to make reservations should
destroy the practical value of the undertaking. There seems, however,
to be no justification for such misgivings. In the first place, it is
to be hoped that every Government will confine its reservations to what
is absolutely essential. Secondly, it must be recognised that, however
restrictive the scope of the undertaking may be, it will always be
better than no undertaking at all.
The fact that the signatory States undertake to accede, even though it
be with reservations, to paragraph 2 of Article 36 may therefore be
held to constitute a great advance.
Such accession must take place at latest within the month following
upon the coming into force or subsequent acceptance of the Protocol.
It goes without saying that such accession in no way restricts the
liberty which States possess, under the ordinary law, of concluding
special agreements for arbitration. It is entirely open to any two
countries signatory of the Protocol which have acceded to paragraph 2
of Article 36 to extend still further, as between themselves, the
compulsory jurisdiction of the Court, or to stipulate that before
having recourse to its jurisdiction they will submit their disputes to
a special procedure of conciliation or even to stipulate, either before
or after a dispute {173} has arisen, that it shall be brought before a
special tribunal of arbitrators or before the Council of the League of
Nations rather than to the Court.
It is also certain that up to the time of the coming into force or
acceptance of the Protocol accession to paragraph 2 of Article 36 which
will thenceforth become compulsory, will remain optional, and that if
such accession has already taken place it will continue to be valid in
accordance with the terms under which it was made.
The only point which may cause difficulty is the question what is the
effect of accessions given to the Protocol if the latter becomes null
and void. It may be asked whether such accessions are to be regarded
as so intimately bound up with the Protocol that they must disappear
with it. The reply must be in the negative. The sound rule of
interpretation of international treaties is that, unless there is
express provision to the contrary, effects already produced survive the
act from which they sprang.
The natural corollary is that any State which wishes to make the
duration of its accession to Article 36 dependent on the duration of
the Protocol must make an express stipulation to this effect. As
Article 36 permits acceptance of the engagement in question for a
specified term only, a State may, when acceding, stipulate that it only
undertakes to be bound during such time as the Protocol shall remain in
force.
5.--STRENGTHENING OF PACIFIC METHODS OF PROCEDURE.
_Article 4._
We have, in the second place, succeeded in making possible the pacific
settlement of all disputes by strengthening the procedure laid down in
the Covenant.
_Article 4, paragraph 1._
_Action by the Council with a view to reconciliation_.--If a dispute
does not come within the compulsory jurisdiction of the {174} Permanent
Court of International Justice and if the Parties have been unable to
come to an agreement to refer it to the Court or to submit it to
arbitration, it should, under the terms of Article 15 of the Covenant,
be submitted to the Council, which will endeavour to secure a
settlement by reconciling the parties. If the Council's efforts are
successful, it must, so far as it considers it advisable, make public a
statement giving such facts and explanations regarding the dispute and
the terms of settlement thereof as it may deem appropriate.
In this connection no change has been made in the procedure laid down
by the Covenant. It appeared unnecessary to specify what particular
procedure should be followed. The Council is given the utmost latitude
in choosing the means most appropriate for the reconciliation of the
parties. It may take advice in various quarters; it may hear expert
opinions; it may proceed to investigations or expert enquiries, whether
by itself or through the intermediary of experts chosen by it; it may
even, upon application by one of the parties, constitute a special
conciliation committee. The essential point is to secure, if possible,
a friendly settlement of the dispute; the actual methods to be employed
are of small importance. It is imperative that nothing should in any
way hamper the Council's work in the interests of peace. It is for the
Council to examine the question whether it would be expedient to draw
up for its own use and bring to the notice of the Governments of the
signatory States general regulations of procedure applicable to cases
brought before it and designed to test the good-will of the parties
with a view to persuading them more easily to reach a settlement under
its auspices.
Experience alone can show whether it will be necessary to develop the
rules laid down in the first three paragraphs of Article 15 of the
Covenant.
For the moment it would appear to be expedient to make no addition and
to have full confidence in the wisdom of the Council, it being
understood that, whether at the moment in question or at any other
stage of the procedure, it will be open to the {175} parties to come to
an agreement for some different method of settlement: by way of direct
understanding, constitution of a special committee of mediators or
conciliators, appeal to arbitration or to the Permanent Court of
International Justice.
The new procedure set up by the Protocol will be applicable only in the
event of the Council's failing in its efforts at reconciliation and of
the parties failing to come to an understanding in regard to the method
of settlement to be adopted.
In such case, before going further, the Council must call upon the
parties to submit their dispute to judicial settlement or to
arbitration.
It is only in the case where this appeal--which the Council will make
in the manner which appears to it most likely to secure a favourable
hearing--is not listened to that the procedure will acquire the
compulsory character which is necessary to make certain the final
settlement of all disputes. There are three alternatives:
(_a_) Compulsory arbitration at the request of one of the parties;
(_b_) A unanimous decision by the Council;
(_c_) Compulsory arbitration enjoined by the Council.
Appropriate methods are laid down for all three cases.
_Article 4, paragraph 2._
_First case of Compulsory Arbitration_.--If the parties, being called
upon by the Council to submit their dispute to a judicial or arbitral
settlement, do not succeed in coming to an agreement on the subject,
there is no question of optional arbitration, but if a single party
desires arbitration, arbitration immediately becomes compulsory.
The dispute is then _ipso facto_ referred to a Committee of
Arbitrators, which must be constituted within such time limit as the
Council shall fix.
{176}
Full liberty is left to the parties themselves to constitute this
Committee of Arbitrators. They may agree between themselves in regard
to the number, names and powers of the arbitrators and the procedure.
It is to be understood that the word "powers" is to be taken in the
widest sense, including, _inter alia_, the questions to be put.
It was not considered desirable to develop this idea further. It
appeared to be sufficient to state that any result which could be
obtained by means of an agreement between the parties was preferable to
any other solution.
It also appeared inexpedient to define precisely the powers which
should be conferred upon the arbitrators. This is a matter which
depends upon the circumstances of each particular case. According to
the case, the arbitrators, as is said above, may fill the rôle of
judges giving decisions of pure law or may have the function of
arranging an amicable settlement with power to take account of
considerations of equity.
It has not been thought necessary to lay this down in the form of a
rule. It has appeared preferable to leave it in each case to the
parties to agree between themselves to decide the matter according to
the circumstances of the case.
Nevertheless, consideration has been given to the possibility that the
arbitrators need not necessarily be jurists. It has therefore been
decided that, when called upon to deal with points of law, they shall,
if one of the parties so desires, request, through the medium of the
Council, the advisory opinion of the Permanent Court of International
Justice, which must, in such a case, meet with the utmost possible
despatch. The opinion of the Court is obtained for the assistance of
the arbitrators; it is not legally binding upon them, although its
scientific authority must, in all cases, exercise a strong influence
upon their judgment. With a view to preventing abusively frequent
consultations of this kind, it is understood that the opinion of the
Court in regard to disputed points of law can only be asked on a single
occasion in the course of each case.
{177}
The extension which, in the new system of pacific settlement of
disputes, has been given to the advisory procedure of the Court has
suggested the idea that it might be desirable to examine whether, even
in such cases, it might not be well to adopt the system of adding
national judges which at present only obtains in litigious proceedings,
and also that of applying to the advisory procedure the provisions of
Article 24 of the Statute of the Court relating to withdrawal of judges.
If the parties have not been able to come to an understanding on all or
on some of the points necessary to enable the arbitration to be carried
out, it lies with the Council to settle the unsettled points, with the
exception of the formulation of the questions to be answered, which the
arbitrators must seek in the claims set out by the parties or by one of
them if the others make default.
In cases where the selection of arbitrators thus falls upon the
Council, it has appeared necessary--however much confidence may be felt
in the Council's wisdom--to lay down for the selection of the
arbitrators certain rules calculated to give the arbitration the
necessary moral authority to ensure that it will in practice be
respected.
The first rule is that the Council shall, before proceeding to the
selection of arbitrators, have regard to the wishes of the parties. It
was suggested that this idea should be developed by conferring on the
parties the right to indicate their preferences and to challenge a
certain number of the arbitrators proposed by the Council.
This proposal was set aside on account of the difficulty of laying down
detailed regulations for the exercise of this double right. But it is
understood that the Council will have no motive for failing to accept
candidates proposed to it by the different parties nor for imposing
upon them arbitrators whom they might wish to reject, nor, finally, for
failing to take into account any other suggestion which the parties
might wish to make. It is indeed evident that the Council will always
be desirous of acting {178} in the manner best calculated to increase
to the utmost degree the confidence which the Committee of Arbitrators
should inspire in the parties.
The second rule is based on the same point of view. It lays down the
right of the Council to select the arbitrators and their president from
among persons who, by their nationality, their personal character and
their experience, appear to furnish the highest guarantees of
competence and impartiality.
Here, too, experience will show whether it would be well for the
Council to draw up general regulations for the composition and
functioning of the compulsory arbitration now in question and of that
above referred to, and for the conciliation procedure in the Council
itself. Such regulations would be made for the Council's own use but
would be communicated to the Governments of the signatory States.
_Article 4, paragraph 3._
_Unanimous decision by the Council_.--If arbitration is refused by both
parties the case will be referred back to the Council, but this time it
will acquire a special character. Refusal of arbitration implies the
consent of both parties to a final settlement of the dispute by the
Council. It implies recognition of an exceptional jurisdiction of the
Council. It denotes that the parties prefer the Council's decision to
an arbitral award.
Resuming the examination of the question, the Council has not only the
latitude which it customarily possesses. It is armed with full powers
to settle the question finally and irrevocably if it is unanimous. Its
decision, given unanimously by all the members other than those
representing parties to the dispute, is imposed upon the parties with
the same weight and the same force as the arbitration award which it
replaces.
_Article 4, paragraph 4._
_Second case of Compulsory Arbitration_.--If the Council does not
arrive at a unanimous decision, it has to submit the dispute {179} to
the judgment of a Committee of Arbitrators, but this time, owing to the
parties being deemed to have handed their case over to the Council, the
organisation of the arbitration procedure is taken entirely out of
their hands. It will be for the Council to settle all the details, the
composition, the powers and the procedure of the Committee of
Arbitrators. The Council is of course at liberty to hear the parties
and even to invite suggestions from them, but it is under no obligation
to do so. The only regulation with which it must comply is that, in
the choice of arbitrators, it must bear in mind the guarantees of
competence and impartiality which, by their nationality, their personal
character and their experience, these arbitrators must always furnish.
_Article 4. paragraph 6._
_Effect of, and Sanction enforcing, Decisions_.--Failing a friendly
arrangement, we are, thanks to the system adopted, in all cases certain
of arriving at a final solution of a dispute, whether in the form of a
decree of the Permanent Court of International Justice or in the form
of an arbitral award or, lastly, in the form of a unanimous decision of
the Council.
To this solution the parties are compelled to submit. They must put it
into execution or comply with it in good faith.
If they do not do so, they are breaking an engagement entered into
towards the other signatories of the Protocol, and this breach involves
consequences and sanctions according to the degree of gravity of the
case.
If the recalcitrant party confines itself to offering passive
resistance to the solution arrived at, it will first be the object of
pacific pressure from the Council, which must exercise all its
influence to persuade it to respect its engagements. If the Council is
unsuccessful, it must propose measures calculated to ensure effect
being given to the decision.
On this point the Protocol has been guided solely by the regulation
contained at the end of Article 13 of the Covenant. The {180} Council
may thus institute against the recalcitrant party collective sanctions
of an economic and financial order. It is to be supposed that such
sanctions will prove sufficient. It has not appeared possible to go
further and to employ force against a State which is not itself
resorting to force. The party in favour of which the decision has been
given might, however, employ force against the recalcitrant party if
authorised to do so by the Council.
But if the State against which the decision has been given takes up
arms in resistance thereto, thereby becoming an aggressor against the
combined signatories, it deserves even the severe sanctions provided in
Article 16 of the Covenant, interpreted in the manner indicated in the
present Protocol.
_Sphere of Application of Methods of Pacific Procedure_.--Necessary as
the system which we have laid down is for the purpose of ensuring
settlement of all disputes, in applying it, the pacific aim which
underlies it must be the only guide. It must not be diverted to other
purposes and used as an occasion for chicanery and tendencious
proceedings by which the cause of peace would lose rather than gain.
A few exceptions to the rule have also had to be made in order to
preserve the elasticity of the system. These are cases in which the
claimant must be nonsuited, the claim being one which has to be
rejected _in limine_ by the Council, the Permanent Court of
International Justice or the arbitrators, as the case may be.
The disputes to which the system will not apply are of three kinds:
_Article 4, paragraph 5._
1. The first concerns disputes relating to questions which, at some
time prior to the entry into force of the Protocol have been the
subject of a unanimous recommendation by the Council accepted by one of
the parties concerned. It is essential to {181} international order
and to the prestige of the Council that its unanimous recommendations,
which confer a right upon the State accepting them, shall not be called
into question again by means of a procedure based upon compulsory
arbitration. Failing a friendly arrangement, the only way which lies
open for the settlement of disputes to which these recommendations may
give rise is recourse to the Council in accordance with the procedure
at present laid down in the Covenant.
_Article 4, paragraph 7._
2. The same applies to disputes which arise as the result of measures
of war taken by one or more signatory States in agreement with the
Council or the Assembly of the League of Nations. It would certainly
not be admissible that compulsory arbitration should become a weapon in
the hands of an enemy to the community to be used against the freedom
of action of those who, in the general interest, seek to impose upon
that enemy respect for his engagements.
In order to avoid all difficulty of interpretation, these first two
classes of exceptions have been formally stated in the Protocol.
3. There is a third class of disputes to which the new system of
pacific settlement can also not be applied. These are disputes which
aim at revising treaties and international acts in force, or which seek
to jeopardise the existing territorial integrity of signatory States.
The proposal was made to include these exceptions in the Protocol, but
the two Committees were unanimous in considering that, both from the
legal and from the political point of view, the impossibility of
applying compulsory arbitration to such cases was so obvious that it
was quite superfluous to make them the subject of a special provision.
It was thought sufficient to mention them in this report.
{182}
6.--ROLE OF THE ASSEMBLY UNDER THE SYSTEM SET UP BY THE PROTOCOL.
_Article 6._
The new procedure should be adapted to the old one, which gave the
Assembly the same powers as the Council when a dispute is brought
before it, either by the Council itself or at the request of one of the
parties.
The question has arisen whether the system of maintaining in the new
procedure this equality of powers between the two organs of the League
of Nations is a practical one. Some were of opinion that it would be
better to exclude intervention by the Assembly. Finally, however, the
opposite opinion prevailed; an appeal to the Assembly may, indeed, have
an important influence from the point of view of public opinion.
Without going so far as to assign to the Assembly the same rôle as to
the Council, it has been decided to adopt a mixed system by which the
Assembly is, in principle, substituted for the Council in order that,
when a dispute is referred to it in conformity with paragraph 9 of
Article 15 of the Covenant, it may undertake, in the place of the
Council, the various duties provided for in Article 4 of the present
Protocol with the exception of purely executive acts which will always
devolve upon the Council. For example, the organisation and management
of compulsory arbitration, or the transmission of a question to the
Permanent Court of International Justice, must always be entrusted to
the Council, because, in practice, the latter is the only body
qualified for such purposes.
The possible intervention of the Assembly does not affect in any way
the final result of the new procedure. If the Assembly does not
succeed in conciliating the parties and if one of them so requests,
compulsory arbitration will be arranged by the Council in accordance
with the rules laid down beforehand.
If none of the parties asks for arbitration, the matter is referred
back to the Assembly, and if the solution recommended {183} by the
Assembly obtains the majority required under paragraph 10 of Article 15
of the Covenant, it has the same value as a unanimous decision of the
Council.
Lastly, if the necessary majority is not obtained, the dispute is
submitted to a compulsory arbitration organised by the Council.
In any event, as in the case where the Council alone intervenes, a
definitive and binding solution of the dispute is reached.
7.--DOMESTIC JURISDICTION OF STATES.
_Article 5._
The present Protocol in no way derogates from the rule of Article 15,
paragraph 8, of the Covenant, which protects national sovereignty.
In order that there might be no doubt on this point, it appeared
advisable to say so expressly.
Before the Council, whatever be the stage in the procedure set up by
the Protocol at which the Council intervenes, the provision referred to
applies without any modification.
The rule is applied also to both cases of compulsory arbitration. If
one of the States parties to the dispute claims that the dispute or
part thereof arises out of a matter which by international law is
solely within its jurisdiction, the arbitrators must on this point take
the advice of the Permanent Court of International Justice through the
medium of the Council, for the question thus put in issue is a legal
question upon which a judicial opinion should be obtained.
The Court will thus have to give a decision as to whether the question
in dispute is governed by international law or whether it falls within
the domestic jurisdiction of the State concerned. Its functions will
be limited to this point and the question will in any event be referred
back to the arbitrators. But, unlike other opinions requested of the
Court in the course of a compulsory arbitration--opinions which for the
arbitrators are purely {184} advisory--in the present case the opinion
of the Court is compulsory in the sense that, if the Court has
recognised that the question in dispute falls entirely within the
domestic jurisdiction of the State concerned, the arbitrators will
simply have to register this conclusion in their award. It is only if
the Court holds that the question in dispute is governed by
international law that the arbitrators will again take the case under
consideration in order to give a decision upon its substance.
The compulsory character of the Court's opinion, in this case,
increases the importance of the double question referred to above, in
connection with Article 4, relating to the calling-in of national
judges, and the application of Article 24 of the Statute of the Court
in matters of advisory procedure.
While the principle of Article 15, paragraph 8, of the Covenant is
maintained, it has been necessary, in order to make its application
more flexible, to call in aid the rule contained in Article 11 of the
Covenant, which makes it the duty of the League of Nations, in the
event of war or a threat of war, to "take any action that may be deemed
wise and effective to safeguard the peace of nations," and obliges the
Secretary-General to summon forthwith a meeting of the Council on the
request of any Member of the League. It is in this way understood that
when it has been recognised that a dispute arises out of a matter which
is solely within the domestic jurisdiction of one of the parties, that
party or its opponent will be fully entitled to call upon the Council
or the Assembly to act.
There is nothing new in this simple reference to Article 11. It leaves
unimpaired the right of the Council to take such action as it may deem
wise and effectual to safeguard the peace of nations. It does not
confer new powers of functions on either the Council or the Assembly.
Both these organs of the League simply retain the powers now conferred
upon them by the Covenant.
In order to dispel any doubt which may arise from the {185} parallel
which has been drawn between Article 15, paragraph 8, and Article 11 of
the Covenant, a very clear explanation was given in the course of the
discussion in the First Committee. Where a dispute is submitted to the
Council under Article 15 and it is claimed by one party that the
dispute arises out of a matter left exclusively within its domestic
jurisdiction by international law, paragraph 8 prevents the Council
from making any recommendations upon the subject if it holds that the
contention raised by the party is correct and that the dispute does in
fact arise out of a matter exclusively within that State's jurisdiction.
The effect of this paragraph is that the Council cannot make any
recommendation in the technical sense in which that term is used in
Article 15, that is to say, it cannot make, even by unanimous report,
recommendations which become binding on the parties in virtue of
paragraph G.
Unanimity for the purpose of Article 15 implies a report concurred in
by all the members of the Council other than the parties to the
dispute. Only a report so concurred in is one which the parties to the
dispute are bound to observe, in the sense that, if they resort to war
with any party which complies with the recommendations, it will
constitute a breach of Article 16 of the Covenant and will set in play
the sanctions which are there referred to.
On the other hand, Article 11 is of different scope: first, it operates
only in time of war or threat of war; secondly, it confers no right on
the Council or on the Assembly to impose any solution of a dispute
without the consent of the parties. Action taken by the Council or the
Assembly under this article cannot become binding on the parties to the
dispute in the sense in which recommendations under Article 15 become
binding, unless they have themselves concurred in it.
One last point should be made clear. The reference which is made to
Article 11 of the Covenant holds good only in the eventuality
contemplated in Article 15, paragraph 8, of the Covenant. It is
obvious that when a unanimous decision of the {186} Council or an
arbitral award has been given upon the substance of a dispute, that
dispute is finally settled and cannot again be brought either directly
or indirectly under discussion. Article 11 of the Covenant does not
deal with situations which are covered by rules of law capable of
application by a judge. It applies only to cases which are not yet
regulated by international law. In fact, it demonstrates the existence
of loop-holes in the law.
The reference to Article 11 in two of the articles of the Protocol
(Articles 5 and 10) has advantages beyond those to which attention is
drawn in the commentary on the text of those articles. It will be an
incitement to science to clear the ground for the work which the League
of Nations will one day have to undertake with a view to bringing
about, through the development of the rules of international law, a
closer reconciliation between the individual interests of its Members
and the universal interests which it is designed to serve.
8.--DETERMINATION OF THE AGGRESSOR.
_Article 10._
In order that the procedure of pacific settlement may be accompanied by
the necessary sanctions, it has been necessary to provide for
determining exactly the State guilty of aggression to which sanctions
are to be applied.
This question is a very complex one, and in the earlier work of the
League the military experts and jurists who had had to deal with it
found it extremely difficult.
There are two aspects to the problem: first, aggression has to be
defined, and, secondly, its existence has to be ascertained.
The definition of aggression is a relatively easy matter, for it is
sufficient to say that any State is the aggressor which resorts in any
shape or form to force in violation of the engagements contracted by it
either under the Covenant (if, for instance, being a Member of the
League of Nations, it has not respected the territorial integrity or
political independence of another Member {187} of the League) or under
the present Protocol (if, for instance, being a signatory of the
Protocol, it has refused to conform to an arbitral award or to a
unanimous decision of the Council). This is the effect of Article 10,
which also adds that the violation of the rules laid down for a
demilitarised zone is to be regarded as equivalent to resort to war.
The text refers to resort to war, but it was understood during the
discussion that, while mention was made of the most serious and
striking instance, it was in accordance with the spirit of the Protocol
that acts of violence and force, which possibly may not constitute an
actual state of war, should nevertheless be taken into consideration by
the Council.
On the contrary, to ascertain the existence of aggression is a very
difficult matter, for although the first of the two elements which
together constitute aggression, namely, the violation of an engagement,
is easy to verify, the second, namely, resort to force, is not an easy
matter to ascertain. When one country attacks another, the latter
necessarily defends itself, and when hostilities are in progress on
both sides, the question arises which party began them.
This is a question of fact concerning which opinions may differ.
The first idea which occurs to the mind is to make it the duty of the
Council to determine who is the aggressor. But, immediately, the
question arises whether the Council must decide this question
unanimously, or whether a majority vote would suffice. There are
serious disadvantages in both solutions and they are therefore
unacceptable.
To insist upon a unanimous decision of the Council exposes the State
attacked to the loss of those definite guarantees to which it is
entitled, if one single Member of the Council--be it in good faith or
otherwise--insists on adhering to an interpretation of the facts
different from that of all his colleagues. It is impossible to admit
that the very existence of a nation should be subject to such a hazard.
It is not sufficient to point out that {188} the Council would be bound
to declare the existence of aggression in an obvious case and that it
could not fail to carry out its duty. The duty would be a duty without
a sanction and if by any chance the Council were not to do its duty,
the State attacked would be deprived of all guarantees.
But it would also be dangerous to rely on a majority vote of the
Council. In that case, the danger would be incurred by the State
called upon to furnish assistance and to support the heavy burden of
common action, if it still entertained some doubt as to the guilt of
the country against which it had to take action. Such a country would
run the risk of having to conform to a decision with which it did not
agree.
The only escape from this dilemma appeared to lie in some automatic
procedure which would not necessarily be based on a decision of the
Council. After examining the difficulty and discussing it in all its
aspects, the First Committee believes that it has found the solution in
the idea of a presumption which shall hold good until the contrary has
been established by a unanimous decision of the Council.
The Committee is of opinion that this presumption arises in three
cases, namely, when a resort to war is accompanied:
By a refusal to accept the procedure of pacific settlement or
to submit to the decision resulting therefrom;
By violation of provisional measures enjoined by the Council
as contemplated by Article 7 of the Protocol;
Or by disregard of a decision recognising that the dispute
arises out of a matter which lies exclusively within the
domestic jurisdiction of the other party and by failure or
by refusal to submit the question first to the Council or
the Assembly.
In these cases, even if there is not absolute certainty, there exists
at any rate a very strong presumption which should suffice for the
application of sanctions unless proof to the contrary has been
furnished by a unanimous decision of the Council.
It will be noticed that there is a characteristic difference between
the first two cases and the third.
{189}
In the first two cases the presumption exists when, in addition to a
state of war, the special condition referred to is also fulfilled.
In the third case, however, the presumption is dependent upon three
conditions: disobedience to a decision, wilful failure to take
advantage of the remedy provided in Article 11 of the Covenant, and the
existence of a state of war.
This difference is due to the necessity of taking into account the
provisions of Article 5 analysed above, which, by its reference to
Article 11 of the Covenant, renders the application of paragraph 8 of
Article 15 of the Covenant more flexible. After very careful
consideration it appeared that it would be unreasonable and unjust to
regard as _ipso facto_ an aggressor a State which, being prevented
through the operation of paragraph 8 of Article 15 from urging its
claims by pacific methods and being thus left to its own resources, is
in despair driven to war.
It was considered to be more in harmony with the requirements of
justice and peace to give such a State which has been non-suited on the
preliminary question of the domestic jurisdiction of its adversary, a
last chance of arriving at an amicable agreement by offering it the
final method of conciliation prescribed in Article 11 of the Covenant.
It is only if, after rejecting this method, it has recourse to war that
it will be presumed to be an aggressor.
This mitigation of the rigid character of paragraph 8 of Article 15 has
been accepted, not only because it is just, but also because it opens
no breach in the barrier set up by the Protocol against aggressive war:
it in no way infringes the principle--which remains unshaken--that a
war undertaken against a State whose exclusive jurisdiction has been
formally recognised is an international crime to be avenged
collectively by the signatories of the Protocol.
When a State whose demands have been met with the plea of the domestic
jurisdiction of its adversary has employed the resource provided for in
Article 11 of the Covenant, the presumption of aggression falls to the
ground. The aggression itself {190} remains. It will be for the
Council to decide who is responsible for the aggression in accordance
with the procedure which will be described below.
Apart from the above cases, there exists no presumption which can make
it possible automatically to determine who is the aggressor. But this
fact must be determined, and, if no other solution can be found, the
decision must be left to the Council. The same principle applies where
one of the parties is a State which is not a signatory of the Protocol
and not a Member of the League.
If the Council is unanimous, no difficulty arises. If, however, the
Council is not unanimous, the difficulty is to be overcome by directing
that the Council must enjoin upon the belligerents an armistice the
terms of which it will fix if need be by a two-thirds majority and the
party which rejects the armistice or violates it is to be held to be an
aggressor.
The system is therefore complete and is as automatic as it can be made.
Where a presumption has arisen and is not rejected by a unanimous
decision of the Council, the facts themselves decide who is an
aggressor; no further decision by the Council is needed and the
question of unanimity or majority does not present itself; the facts
once established, the Council is bound to act accordingly.
Where there is no presumption, the Council has to declare the fact of
aggression; a decision is necessary and must be taken unanimously. If
unanimity is not obtained, the Council is bound to enjoin an armistice,
and for this purpose no decision properly speaking has to be taken:
there exists an obligation which the Council must fulfil; it is only
the fixing of the terms of the armistice which necessitates a decision,
and for this purpose a two-thirds majority suffices.
It was proposed to declare that, in cases of extreme urgency, the
Council might determine the aggressor, or fix the conditions of an
armistice, without waiting for the arrival of the {191} representative
which a party not represented among its members has been invited to
send under the terms of paragraph 5 of Article 4 of the Covenant.
It seemed preferable, however, not to lay down any rule on this matter
at present but to ask the special Committee which the Council is to
appoint for the drafting of amendments to the Covenant on the lines of
the Protocol, to consider whether such a rule is really necessary.
It may in fact be thought that the Council already possesses all the
necessary powers in this matter and that, in cases of extreme urgency,
if the State invited to send a representative is too far distant from
the seat of the Council, that body may decide that the representative
shall be chosen from persons near at hand and shall attend the meeting
within a prescribed period, on the expiry of which the matter may be
considered in his absence.
The fact of aggression having been established by presumption or by
unanimous decision of the Council or by refusal to accept or violation
of the armistice, it will only remain to apply the sanctions and bring
into play the obligations of the guarantor States. The Council will
merely call upon them to fulfil their duty; here, again, there is no
decision to be taken but an obligation to be fulfilled, and the
question of majority or unanimous vote does not arise.
It is not, indeed, a matter of voting at all.
In order to leave no room for doubt, it has been formally laid down
that a State which, at the invitation of the Council, engages in acts
of violence against an aggressor is in the legal position of a
belligerent and may consequently exercise the rights inherent in that
character.
It was pointed out in the course of the discussion that such a State
does not possess entire freedom of action. The force employed by it
must be proportionate to the object in view and must be exercised
within the limits and under the conditions recommended by the Council.
{192}
_Article 18._
Likewise, in order to avoid any misunderstanding, it has been
stipulated, in a special Article, that unanimity or the necessary
majority in the Council is always calculated according to the rule
referred to on several occasions in Article 15 of the Covenant and
repeated in Article 16 of the Covenant for the case of expulsion of a
Member from the League, viz., without counting the votes of the
representatives of the parties to the dispute.
9.--DISPUTES BETWEEN STATES SIGNATORY AND STATES NON-SIGNATORY OF THE
PROTOCOL.
_Article 16._
As regards the settlement of disputes arising between a State signatory
and one or more States non-signatory and non-Members of the League of
Nations, the new system has had to be adapted to the former system.
In order that States signatory might enjoy the essential advantages
offered by the Protocol, which forbids all wars of aggression, it has
been necessary to bring the rule laid down in Article 17 of the
Covenant into harmony with the provisions of the Protocol. It has
therefore been decided that States non-signatory and non-Members of the
League of Nations in conflict with a State signatory shall be invited
to conform to the new procedure of pacific settlement and that, if they
refuse to do so and resort to war against a State signatory, they shall
be amenable to the sanctions provided by Article 16 of the Covenant as
defined by the Protocol.
There is no change in the arrangements laid down in the Covenant for
the settlement of disputes arising between States Members of the League
of Nations of which one is a signatory of the Protocol and the other is
not. The legal nexus established by the Covenant between two such
parties does not allow the signatory States to apply as of right the
new procedure of pacific settlement to non-signatory but Member States.
All that {193} signatory States are entitled to expect as regards such
other States is that the Council should provide the latter with an
opportunity to follow this procedure and it is to be hoped that they
will do so. But such States can only be offered an opportunity to
follow the new procedure; they cannot be obliged to follow it. If they
refuse, preferring to adhere to the procedure laid down in the
Covenant, no sanctions could possibly be applied to them.
The above indicated solution of the case of States non-signatory but
Members of the League of Nations appears to be so obvious as to require
no special mention in the Protocol. A proposal to make a special
mention of the matter was made, but after explanations had been given,
the authors withdrew their suggestion, declaring that they would be
satisfied with the above reference to the subject.
At first sight the difference in the way it is proposed to treat
non-signatories non-Members of the League of Nations and
non-signatories Members of the League may cause some surprise, for it
would seem that the signatory States impose greater obligations on the
first category than on the second. This, however, is only an
appearance. In reality, the signatory States impose no obligations on
either category. They cannot do so because the present Protocol is
_res inter alias acta_ for all non-signatory States, whether they are
Members of the League of Nations or not. The signatories merely
undertake obligations as between themselves as to the manner in which
they will behave if one of them becomes involved in a conflict with a
third State. But whereas, in possible conflicts with a State
non-signatory and non-Member of the League, they are entirely free to
take such action as they choose, in conflicts which may arise between
them and States non-signatory but Members, like themselves, of the
League of Nations, their freedom of action is to some extent
circumscribed because both parties are bound by legal obligations
arising under the Covenant.
{194}
2.--WORK OF THE THIRD COMMITTEE.
(_Rapporteur_: M. BENES)
SECURITY AND REDUCTION OF ARMAMENTS.
(_Articles 7 to 9, 11 to 15, 17 and 21 of the Protocol_)
1.--INTRODUCTION.
The special work of the Third Committee was to deal with the problem of
security (sanctions) and the reduction of armaments.
The work required, above all, important political negotiations. While
the question of arbitration only required one political decision of
principle, namely, the acceptance of compulsory arbitration, and the
remainder was principally a matter of drafting--without question an
extremely difficult task--of a scheme for the application of such
arbitration, the questions of security and disarmament necessitated
long and laborious political negotiations; for they involved
fundamental interests, questions of vital importance to the States,
engagements so far-reaching as radically to change the general
situation of the various countries.
Although in the work of the First Committee the Assembly had distinctly
indicated in its resolution of September 6th that there was a
likelihood--indeed, a necessity--of amending the Covenant, the work of
the Third Committee as regards questions of security and reduction of
armaments had, in conformity with the debates of the Assembly, to
remain within the framework of the Covenant. Above all, it was a
question of developing and rendering more precise what is already laid
down in the Covenant. All our discussions, all our labours, were
guided by these principles, and a delicate task was thus imposed upon
us. But the spirit of conciliation which pervaded all the discussions
has permitted us to resolve the two problems which were placed before
us. This is, indeed, an important result, and if the solution of the
problem of arbitration which has been so {195} happily arrived at by
the First Committee be also taken into consideration, we are in the
presence of a system the adoption of which may entirely modify our
present political life.
This is the real import of the articles of the Protocol concerning the
questions of security and reduction of armaments.
2.--THREAT OF AGGRESSION: PREVENTIVE MEASURES.
_Article 7._
The pacific settlement of disputes being provided for in the present
Protocol, the signatory States undertake, should any conflict arise
between them, not to resort to preparations for the settlement of such
dispute by war and, in general, to abstain from any act calculated to
aggravate or extend the said dispute. This principle applies both to
the period preceding the submission of the dispute to arbitration or
conciliation and to the period in which the case is pending.
This provision is not unaccompanied by sanctions. Any appeal against
the violation of the aforesaid undertakings may, in conformity with
Article 11 of the Covenant, be brought before the Council. One might
say that, in addition to such primary dispute as is or might be
submitted to the Council or to some other competent organ, a second
dispute arises, caused by the violation of the undertakings provided
for in the first paragraph.
The Council, unless it be of opinion that the appeal is not worthy of
consideration, will proceed with the necessary enquiries and
investigations. Should it be established that an offence has been
committed against the provisions of the first paragraph, it will be the
duty of the Council, in the light of the results of such enquiries and
investigations, to call upon any State guilty of the offence to put an
end thereto. Any such State failing to comply will be declared by the
Council to be guilty of violation of the Covenant (Article 11) or the
Protocol.
The Council must, further, take the necessary measures to put an end,
as soon as possible, to a situation calculated to {196} threaten the
peace of the world. The text does not define the nature of these
preventive measures. Its elasticity permits the Council to take such
measures as may be appropriate in each concrete case, as, for example,
the evacuation of territories.
Any decisions which may be taken by the Council in virtue of this
Article may be taken by a two-thirds majority, except in the case of
decisions dealing with questions of procedure which still come under
the general rule of Article 5, paragraph 2, of the Covenant. The
following decisions, therefore, can be taken by a two-thirds majority:
The decision as to whether there has or has not been an offence
against the first paragraph;
The decision calling upon the guilty State to remedy the offence;
The decision as to whether there has or has not been refusal to
remedy the offence;
Lastly, the decision as to the measures calculated to put an end,
as soon as possible, to a situation calculated to threaten the
peace of the world.
The original text of Article 7 provided that, in the case of enquiries
and investigations, the Council should avail itself of the organisation
to be set up by the Conference for the Reduction of Armaments in order
to ensure respect for the decisions of that Conference. There is no
longer any mention of this organisation, but this omission does not
prejudice any decisions which the Conference may be called upon to take
regarding the matter. It will be entirely free to set up an
organisation, if it judges this necessary, and the Council's right to
make use of this body for the enquiries and investigations contemplated
will, _a fortiori_, remain intact.
_Article 8._
Article 8 must be considered in relation to Article 2. Article 2
establishes the obligation not to resort to war, while Article 8,
giving effect to Article 10 of the Covenant, goes further. The {197}
signatories undertake to abstain from any act which might constitute a
threat of aggression against any other State. Thus, every act which
comes within the scope of this idea of a threat of war--and its scope
is sufficiently elastic--constitutes a breach of the Protocol, and
therefore a dispute with which the Council is competent to deal.
If, for example, one State alleges that another State is engaged in
preparations which are nothing less than a particular form of threat of
war (such as any kind of secret mobilisation, concentration of troops,
formation of armed bodies with the connivance of the Government, etc.),
the Council, having established that there is a case for consideration,
will apply the procedure which may be defined as the procedure of
preventive measures; it will arrange for suitable enquiries and
investigations, and, in the event of any breach of the provisions of
paragraph 1 being established, will take the steps described in Article
7, paragraph 4.
3.--SECURITY--SANCTIONS.
_Article 11._
(_Article 11, paragraphs 1 and 2, of the Protocol in its relation to
Articles 10 and 16 of the Covenant_)
According to Article 10 of the Covenant, Members of the League
undertake to preserve as against external aggression the territorial
integrity and existing political independence of all Members of the
League. In case of aggression, the Council shall advise upon the means
by which this obligation shall be fulfilled.
According to Article 16, should any Member of the League resort to war
in disregard of its engagements under Articles 12, 13 or 15, all other
Members of the League undertake immediately to apply economic
sanctions; furthermore, it shall be the duty of the Council to
recommend to the several Governments concerned what effective military,
naval or air forces the Members of the League shall severally
contribute to the armed forces to be used to protect the engagements of
the League.
{198}
At the time when they were drafted at the Peace Conference in Paris in
1919, these articles gave rise to keen controversy as to the exact
scope of the engagements entered into in these provisions, that is to
say, as to the nature and extent of the obligations referred to in
Article 10, the exact moment at which such obligations arose, and the
legal consequences of the Council recommendations referred to in
Article 16, paragraph 2. This controversy continued, as is well known,
in the debates here in Geneva, where the question has been discussed in
previous years.
Article 11 is intended to settle this controversy. The signatories of
the present Protocol accept the obligation to apply against the
aggressor the various sanctions laid down in the Covenant, as
interpreted in Article 11 of the Protocol, when an act of aggression
has been established and the Council has called upon the signatory
States immediately to apply such sanctions (Article 10, last
paragraph). Should they fail so to do, they will not be fulfilling
their obligations.
The nature and extent of this obligation is clearly defined in
paragraph 2 of Article 11. According to this paragraph, the reply to
the question whether a signatory to the Protocol has or has not
fulfilled its obligation depends on whether it has loyally and
effectively co-operated in resisting the act of aggression to an extent
consistent with its geographical position and its particular situation
as regards armaments.
The State remains in control of its forces, and itself, and not the
Council, directs them, but paragraph 2 of Article 11 gives us positive
material upon which to form a judgment as to whether or not the
obligation has been carried out in any concrete case. This criterion
is supplied by the term: _loyally and effectively_.
In answering the question whether a State has or has not fulfilled its
obligations in regard to sanctions, a certain elasticity in the
obligations laid down in Article 11 allows of the possibility of
_taking into account, from every point of view, the position of each
State which is a signatory to the present Protocol_. The signatory
States are not all in possession of equal facilities for {199} acting
when the time comes to apply the sanctions. This depends upon the
geographical position and economic and social condition of the State,
the nature of its population, internal institutions, etc.
Indeed, during the discussion as to the system of sanctions, certain
delegations declared that their countries were in a special situation
by reason of their geographical position or the state of their
armaments. These countries desired to co-operate to the fullest extent
of their resources in resistance to every act of aggression, but they
drew attention to their special conditions. In order to take account
of this situation, an addition has been made to paragraph 2 of Article
11 pointing out this state of affairs and laying stress on the
particular situation of the countries in question. Moreover, Article
13 of the Protocol allows such countries to inform the Council of these
matters beforehand.
I would further add that the obligations I refer to are imperfect
obligations in the sense that no sanctions are provided for against any
party which shall have failed loyally and effectively to co-operate in
protecting the Covenant and resisting every act of aggression. It
should, however, be emphasised that such a State would have failed in
the fulfilment of its duties and would be guilty of a violation of
engagements entered into.
In view of the foregoing, the gist of Article 11, paragraphs 1 and 2,
might be expressed as follows: Each State is the judge of the manner in
which it shall carry out its obligations but not of the existence of
those obligations, that is to say, each State remains the judge of what
it will do but no longer remains the judge of what it should do.
Now that the present Protocol has defined more precisely the origin,
nature and extent of the obligations arising out of the Covenant, _the
functions of the Council, as provided in Articles 10 and 16, have
become clearer and more definite_.
Directly the Council has called upon the signatories to the Protocol to
apply without delay the sanctions provided in {200} Article 11, it
becomes a regulating, or rather an advisory, body, but not an executive
body. The nature of the acts of aggression may vary considerably; the
means for their suppression will also vary. It would frequently be
unnecessary to make use of all the means which, according to paragraphs
1 and 2 of Article 11, are, so to speak, available for resisting an act
of aggression. It might even be dangerous if, from fear of failing in
their duties, States made superfluous efforts. It will devolve upon
the Council, which, under Article 13 can be put in possession of the
necessary data, to give _its opinion_, should need occur, as to the
best means of executing the obligations which arise directly it enjoins
the application of sanctions, especially as to the sequence in which
the sanctions must be applied.
The practical application of the sanctions would, however, always
devolve upon the Governments; the real co-operation would ensue upon
their getting into touch, through diplomatic channels--perhaps by
conferences--and by direct relations between different General Staffs,
as in the last war. The Council would, of course, be aware of all
these negotiations, would be consulted and make recommendations.
The difference between the former state of affairs and the new will
therefore be as follows:
According to the system laid down by the Covenant:
1. The dispute arises.
2. In cases where neither the arbitral procedure nor the
judicial settlement provided for in Article 13 of the Covenant
is applied, the Council meets and discusses the dispute,
attempts to effect conciliation, mediation, etc.
3. If it be unsuccessful and war breaks out, the Council, if
unanimous, has to express an opinion as to which party is
guilty. The Members of the League then decide for themselves
whether this opinion is justified and whether their
obligations to apply economic sanctions become operative.
4. It then has, _by a unanimous decision, to recommend_
military sanctions.
{201}
5. If unanimity cannot be obtained, the Council ceasing to take
action, each party is practically free to act as it chooses.
According to the new system defined in the Protocol, the situation is
as follows:
1. The dispute arises.
2. The system of peaceful settlement provided for by the
Protocol comes into play.
3. The Council intervenes, and if, after arbitration has been
refused, war is resorted to, if the provisional preventive
measures are not observed, etc., the Council decides which
party is the aggressor and calls upon the signatory States
to apply the sanctions.
4. This decision implies that such sanctions as the case
requires--economic, financial, military, naval and air--shall
be applied forthwith, and without further recommendations or
decisions.
We have therefore the following new elements:
(_a_) The obligation to apply the necessary sanctions of every
kind as a direct result of the decision of the Council.
(_b_) The elimination of the case in which all parties would be
practically free to abstain from any action. The introduction
of a system of arbitration and of provisional measures which
permits of the determination in every case of the aggressor.
(_c_) No decision is taken as to the strength of the military,
naval and air forces, and no details are given as to the
measures which are to be adopted in a particular case. None
the less, objective criteria are supplied which define the
obligation of each signatory; it is bound, in resistance to an
act of aggression, to collaborate _loyally and effectively_ in
applying the sanctions in accordance with its geographical
situation and its particular situation as regards armaments.
That is why I said that _the great omission in the Covenant has been
made good_.
{202}
It is true that no burden has been imposed on States beyond the
sanctions already provided for in the Covenant. But, at present, a
State seeking to elude the obligations of the Covenant can reckon on
two means of escape:
(1) The Council's recommendations need not be followed.
(2) The Council may fail to obtain unanimity, making
impossible any declaration of aggression, so that no
obligation to apply military sanctions will be imposed
and everyone will remain free to act as he chooses.
We have abandoned the above system and both these loopholes are now
closed.
_Article 11, paragraphs 3 and 4._
Paragraph 3 of Article 11 has been drafted with a view to giving
greater precision to certain provisions of Article 11, paragraph 3, of
the Covenant. Article 16, paragraph 3, refers to mutual support in the
application of financial and economic measures. Article 11, paragraph
3, of the present Protocol establishes real economic and financial
co-operation between a State which has been attacked and the various
States which come to its assistance.
As, under Article 10 of the Protocol, it may happen that both States
involved in a dispute are declared to be aggressors, the question arose
as to what would be the best method of settling this problem. There
were three alternatives: to apply the principle contained in paragraph
1, which is practically equivalent to making a sort of police war on
both parties--or to leave the matter to pursue its course, or, finally,
to compel States which disturb the peace of the world to desist from
acts of war by the employment of means less severe than those indicated
in paragraph 1. It is the last method which has been chosen. Only
economic measures will be taken against such States, and naturally they
will not be entitled to receive the assistance referred to in Article
11, paragraph 3.
{203}
_Article 12._
Article 16, paragraph 1, of the Covenant provides for the immediate
severance of all trade or financial relations with the aggressor State,
and paragraph 3 of the same Article provides, _inter alia_, for
economic and financial co-operation between the State attacked and the
various States coming to its assistance.
As has already been pointed out, these engagements have been confirmed
and made more definite in Article 11 of the Protocol.
But the severance of relations and the co-operation referred to
necessarily involve measures so complex that, when the moment arises,
doubts may well occur as to what measures are necessary and appropriate
to give effect to the obligations assumed under the above provisions.
These problems require full consideration in order that States may know
beforehand what their attitude should be.
Article 12 defines the conditions of such investigation.
It is not expressly stated that the problem will be examined by the
Council in collaboration with the various Governments, but the Council
will naturally, if it deems it necessary, invite the Governments to
furnish such information as it may require for the purpose of carrying
out the task entrusted to it under Article 12.
_Article 13, paragraph 1._
The above explanation of Article 11, paragraphs 1 and 2, contains many
references to Article 13.
As I have already pointed out, in case sanctions have to be applied, it
is highly important that there should exist some organ competent to
express an opinion as to the best way in which their obligations could
be carried out by the signatories. As you are aware, this organ,
according to the Covenant, is the Council. In order that the Council
may effectively fulfil this duty, Article 13 empowers it to receive
undertakings from States, determining _in advance_ the military, naval
and air forces which they would {204} be able to bring into action
immediately in order to ensure the fulfilment of the obligations in
regard to sanctions arising, out of the Covenant and the present
Protocol.
It is also necessary to emphasise the fact that the means which the
States signatories to the present Protocol have at their disposal for
the fulfilment of the obligations arising out of Article 11 vary
considerably owing to the differences in the geographical, economic,
financial, political and social condition of different States.
Information as to the means at the disposal of each State is therefore
indispensable in order that the Council may in full understanding give
its opinion as to the best method by which such obligations may best be
carried out.
Finally, as regards the question of the reduction of armaments, which
is the final goal to which our efforts are tending, the information
thus furnished to the Council may be of very great importance, as every
State, knowing what forces will be available for its assistance in case
it is attacked, will be able to judge to what extent it may reduce its
armaments without compromising its existence as a State, and every
State will thus be able to provide the International Conference for the
Reduction of Armaments with very valuable data. I should add,
moreover, that Article 13, paragraph 1, does not render it compulsory
for States to furnish this information. It is desirable that States
should furnish the Council with this information, but they are at
liberty not to do so.
_Article 13, paragraphs 2 and 3._
The provisions of Article 13, paragraphs 2 and 3, refer to the special
agreements which were discussed at such length last year. In view of
the fact that, according to paragraph 2, such agreements can only come
into force when the Council has invited the signatory States to apply
the sanctions, the nature of these agreements may be defined as follows:
Special agreements must be regarded as the means for the rapid
application of sanctions of every kind in a particular case {205} of
aggression. They are additional guarantees which give weaker States an
absolute assurance that the system of sanctions will never fail. They
guarantee that there will always be States prepared immediately to
carry out the obligations provided for in Article 11 of the Protocol.
In accordance with Article 18 of the Covenant, it is expressly stated
that these agreements will be registered and published by the
Secretariat, and it has also been decided that they will remain open
for signature to any State Member of the League of Nations which may
desire to accede to them.
4.--ENDING OF SANCTIONS: PUNISHMENT OF THE AGGRESSOR.
_Article 14._
Article 14 is in perfect keeping with the last paragraphs of Articles
10 and 11. In the paragraphs in question, the coming into operation of
the sanctions depends upon an injunction by the Council; it therefore
also devolves upon the Council to declare that the object for which the
sanctions were applied has been attained. Just as the application of
the sanctions is a matter for the States, so it rests with them to
liquidate the operations undertaken with a view to resisting the act of
aggression.
_Article 15._
Paragraph 1 is similar to Article 10 of the Draft Treaty of Mutual
Assistance drawn up last year.
Paragraph 2 is designed to prevent the sanctions provided for in
Article 11 from undergoing any change in character during the process
of execution and developing into a war of annexation.
In view of the observations of various delegations regarding the
punishment of the aggressor, it should be added that it would be
incorrect to interpret this article as meaning that the only penalties
to be apprehended by the aggressor as the result of his act shall be
the burdens referred to in paragraph 1. If {206} necessary, securities
against fresh aggression, or pledges guaranteeing the fulfilment of the
obligations imposed in accordance with paragraph 1, might be required.
Only annexation of territory and measures involving the loss of
political independence are declared inadmissible.
"Territory" is to be taken to mean the whole territory of a State, no
distinction being made between the mother-country and the colonies.
5.--REDUCTION OF ARMAMENTS.
_Articles 17 and 21._
Although it has not been possible to solve the problem of the reduction
of armaments in the clauses of the document submitted to the Assembly
for approval, our work paves the way to it and makes it possible.
The reduction of armaments will result, in the first place, from the
general security created by a diminution of the dangers of war arising
from the compulsory pacific settlement of all disputes.
It will also ensue from the certainty which any State attacked will
have of obtaining the economic and financial support of all the
signatory States, and such support would be especially important should
the aggressor be a great Power, capable of carrying on a long war.
Nevertheless, for States which, owing to their geographical position,
are especially liable to attack, and for States whose most important
centres are adjacent to their frontiers, the dangers of a sudden attack
are so great that it will not be possible for them to base any plan for
the reduction of their armaments simply upon the political and economic
factors referred to above, no matter what the importance of such
factors may be.
It has also been repeatedly declared that many States would require to
know what military support they could count on, before the convening of
the Conference, if they are to submit to {207} the Conference proposals
for large reductions of armaments; this might necessitate negotiations
between the Governments and with the Council before the meeting of the
Conference for the reduction of armaments provided for in Article 17.
The undertakings referred to in Article 13 of the Protocol should be
interpreted in the light of the above.
In drawing up the general programme of the Conference, it will also be
necessary, as stated in paragraph 2 of Article 17, for the Council,
apart from other criteria "to take into account the undertakings
mentioned."
In view of the close interdependence of the three great problems
involved, namely, the pacific settlement of disputes, sanctions against
those who disturb the peace of the world, and reduction of armaments,
the Protocol provides for the convening by the Council of a general
Conference for the Reduction of Armaments and for the preparation of
the work of such a Conference. Furthermore, the application of the
clauses concerning arbitration and sanctions will be conditional on the
adoption by the said Conference of a plan for the reduction and
limitation of armaments.
Moreover, in order to preserve the connection between the three big
problems referred to above, it is provided that the whole Protocol will
lapse in the event of the non-execution of the scheme adopted by the
Conference. It devolves upon the Council to declare this under
conditions to be determined by the Conference itself.
The last paragraph of Article 21 provides for the case of the partial
lapsing of the Protocol after it has been put into force. Should the
plan adopted by the Conference be regarded as having been put into
effect, any State which fails to execute it, so far as it is concerned,
will not benefit by the provisions of the Protocol.
{208}
6.--THE COVENANT AND THE PROTOCOL.
_Article 19._
The present Protocol emphasises and defines certain obligations arising
out of the Covenant. Those of which the present Protocol makes no
mention are not affected in any manner. They still exist. Examples
which might be quoted are those laid down in Article 16, paragraph 3,
of the Covenant, namely, the obligation of the States to give one
another mutual support in order to minimise the loss and inconvenience
resulting from the application of the economic and financial sanctions
or the obligation of the States to take the necessary steps to afford
passage through their territory to forces which are co-operating to
protect the covenants of the League.
Moreover, as the Swiss Delegation suggests, attention should be
directed to the fact that the present Protocol does not in any way
affect the special position of Switzerland arising out of the
Declaration of the Council at London on February 13th, 1920. As the
special position of Switzerland is in accordance with the Covenant, it
will also be in accordance with the Protocol.
III.
CONCLUSION.
No further explanations need be added to these comments on the
articles. The main principles of the Protocol are clear, as are the
detailed provisions.
Our purpose was to make war impossible, to kill it, to annihilate it.
To do this, we had to create a system for the pacific settlement of all
disputes which might arise. In other words, it meant the creation of a
system of arbitration from which no international dispute, whether
legal or political, could escape. The plan drawn up leaves no
loophole; it prohibits wars of every description and lays down that all
disputes shall be settled by pacific means.
{209}
But this absolute character which has been given to the system of
arbitration should also belong to the whole of the scheme, to the
treatment of every question of principle. If there were one single gap
in the system, if the smallest opening were left for any measure of
force, the whole system would collapse.
To this end arbitration is provided for every kind of dispute, and
aggression is defined in such a way as to give no cause for hesitation
when the Council has to take a decision.
These reasons led us to fill in the gaps in the Covenant and to define
the sanctions in such a way that no possible means could be found of
evading them, and that there should be a sound and definite basis for
the feeling of security.
Finally, the Conference for the Reduction of Armaments is indissolubly
bound up with this whole system: _there can be no arbitration or
security without disarmament, nor can there be disarmament without
arbitration and security_.
The peace of the world is at stake.
The Fifth Assembly has undertaken a work of worldwide political
importance which, if it succeeds, is destined profoundly to modify
present political conditions. This year great progress in this
direction has been made in our work. If we succeed, the League of
Nations will have rendered an inestimable service to the whole modern
world. Such success depends partly upon the Assembly itself and partly
upon individual Governments. We submit to the Assembly the fruit of
our labours: a work charged with the highest hopes. We beg the
Assembly to examine our proposals with care, and to recommend them to
the various Governments for acceptance.
In this spirit and with such hopes do we request the Assembly to vote
the draft resolutions 1 and 2 that are presented with this Report.
{210}
ANNEX D.
RESOLUTIONS.
RESOLUTION OF THE ASSEMBLY, SEPTEMBER 6TH, 1924.
The Assembly,
Noting the declarations of the Governments represented, observes with
satisfaction that they contain the basis of an understanding tending to
establish a secure peace,
Decides as follows:
With a view to reconciling in the new proposals the divergences between
certain points of view which have been expressed and, when agreements
have been reached, to enable an International Conference upon Armaments
to be summoned by the League of Nations at the earliest possible moment:
(1) The Third Committee is requested to consider the material
dealing with security and the reduction of armaments,
particularly the observations of the Governments on the
draft Treaty of Mutual Assistance prepared in pursuance
of Resolution XIV of the Third Assembly and other plans
prepared and presented to the Secretary-General, since
the publication of the draft Treaty, and to examine the
obligations contained in the Covenant of the League in
relation to the guarantees of security which a resort to
arbitration and a reduction of armaments may require:
(2) The First Committee is requested:
(_a_) To consider, in view of possible amendments, the
articles in the Covenant relating to the settlement
of disputes;
(_b_) To examine within what limits the terms of Article
36, paragraph 2, of the statute establishing the
Permanent Court of International Justice might be
rendered more precise and thereby facilitate the
more general acceptance of the clause;
and thus strengthen the solidarity and the security of the nations of
the world by settling by pacific means all disputes which may arise
between States.
{211}
RESOLUTION OF THE ASSEMBLY, SEPTEMBER 27TH, 1924.
Whereas the work of the League of Nations in connection with the
reduction of armaments is entering this year upon a period of
re-organisation which requires the direct attention of the Council,
The Assembly entrusts to the Council the question of the co-ordination
of the work of its Commissions for the Reduction of Armaments.
The Assembly recommends the Council to re-organise the Temporary Mixed
Commission in conformity with the following principles:
(1) The Commission shall include the representatives of a
certain number of Governments;
(2) The Commission shall include qualified delegates of the
Technical Organisation of the League of Nations, that
is to say:
Representatives of the Economic Committee,
" " " Financial Committee,
" " " Transit Committee,
" " " Permanent Advisory Commission,
" " " Employers' and Labour
Groups of the International
Labour Office,
Experts, jurists or others elected by the Council.
(3) Delegates of States not represented on the Commission
may be invited to attend whenever the Commission
thinks fit.
(4) The Council may invite any States not Members of the
League of Nations which may have notified their intention
of taking part in the International Conference for the
Reduction of Armaments to appoint representatives to
participate in the work of the Commission.
RESOLUTION OF THE ASSEMBLY, OCTOBER 2ND, 1924.
I. The Assembly,
Having taken note of the reports of the First and Third {212}
Committees on the questions referred to them by the Assembly resolution
of September 6th, 1924,
Welcomes warmly the draft Protocol on the Pacific Settlement of
International Disputes proposed by the two Committees, of which the
text is annexed to this resolution, and
Decides
(1) To recommend to the earnest attention of all the Members of the
League the acceptance of the said draft Protocol;
(2) To open immediately the said Protocol in the terms proposed for
signature by those representatives of Members of the League who are
already in a position to sign it and to hold it open for signature by
all other States;
(3) To request the Council forthwith to appoint a Committee to draft
the amendments to the Covenant contemplated by the terms of the said
Protocol;
(4) To request the Council to convene an International Conference for
the Reduction of Armaments, which shall meet at Geneva as provided by
the following stipulations of Article 17 of the draft Protocol:
"In preparation for the convening of the Conference, the
Council shall draw up, with due regard to the undertakings
contained in Articles 11 and 13 of the present Protocol, a
general programme for the reduction and limitation of
armaments which shall be laid before the Conference and be
communicated to the Governments at the earliest possible
date, and at the latest, three months before the
Conference meets.
"If by May 1st, 1925, ratifications have not been deposited
by at least a majority of the permanent Members of the
Council and ten other Members of the League, the
Secretary-General of the League shall immediately consult
the Council as to whether he shall cancel the invitations
or merely adjourn the Conference to a subsequent date to
be fixed by the Council so as to permit the necessary
number of ratifications to be obtained."
{213}
(5) To request the Council to put into immediate execution the
provisions of Article 12 of the draft Protocol.
RECOMMENDATION OF THE ASSEMBLY, OCTOBER 2ND, 1924.
II. The Assembly,
Having taken cognisance of the report of the First Committee upon the
terms of Article 36, paragraph 2, of the Statute of the Permanent Court
of International Justice;
Considering that the study of the said terms shows them to be
sufficiently wide to permit States to adhere to the special Protocol,
opened for signature in virtue of Article 36, paragraph 2, with the
reservations which they regard as indispensable;
Convinced that it is in the interest of the progress of international
justice, and consistent with the expectations of the opinion of the
world, that the greatest possible number of States should, to the
widest possible extent, accept as compulsory the jurisdiction of the
Court.
Recommends:
States to accede at the earliest possible date to the special Protocol
opened for signature in virtue of Article 36, paragraph 2, of the
Statute of the Permanent Court of International Justice.
RESOLUTION OF THE ASSEMBLY, OCTOBER 2ND, 1924.
I. The Assembly recommends the Council to place the question of
Regional Agreements for the Reduction of Armaments on the agenda of the
International Conference for the Reduction of Armaments.
II. Whereas the majority of the States which have replied have stated
that, with certain exceptions, they have not exceeded the expenditure
on armaments shown in their last budgets, and whereas the
recommendation addressed to the Governments relates to the period which
must elapse before the meeting of the International Conference for the
Reduction of Armaments, which is to take place next year:
{214}
The Assembly does not consider it necessary to repeat the
recommendation regarding the limitation of expenditure on armaments, as
this question is to be placed upon the agenda of the International
Conference for the Reduction of Armaments.
III. The Assembly is of the opinion:
1. That another technical conference on naval disarmament is
unnecessary.
2. That the question of naval disarmament should be discussed
as part of the general question of disarmament dealt with
by the International Conference proposed in the resolution
of September 6th, 1924, adopted by the Fifth Assembly, and
that it rests with the Council to settle the programme.
IV. The Assembly requests the Council, in preparing the general
programme of the Conference for the Reduction of Armaments provided for
in Article 17 of the Protocol, to consider the advisability of
including in that programme the following points:
1. General plan for a reduction of armaments in accordance
with Article 8 of the Covenant, in particular:
(_a_) Basis and methods of reduction (budget, peace-time
effectives, tonnage of naval and air fleets, population,
configuration of frontiers, etc.);
(_b_) Preparation of a typical budget for expenditure on
armaments.
2. Special position of certain States in relation to the
reduction of armaments:
(_a_) Temporary reservations by countries exposed to
special risks;
(_b_) Recommendation of regional agreements for the
reduction (or limitation) of armaments,
3. Recommendation of the establishment of demilitarised
zones (Article 9).
4. Control and investigation of armaments in the contracting
States.
{215}
The Assembly also requests the Council to instruct the competent
organisations of the League to examine the schemes relating to the
above questions which have already been submitted to the Third
Committee, or which may subsequently be received by the Secretariat,
and to take them into consideration in preparing the programme of the
Conference.
RESOLUTION OF THE COUNCIL, OCTOBER 3RD, 1924.
1. With a view to the preparation of the Conference for the Reduction
of Armaments, the Council decides to form itself into a Committee. The
representatives on the Council who consider that it will not be
possible to attend the Committee in person will, as soon as possible,
send to the Secretary-General the names of their substitutes on this
Committee.
The Committee will hold its first meeting on November 17th, in order to
draw up a general programme of the work connected with the application
of Article 12 of the Protocol and with the reduction of armaments.
The Governments of the States represented on the Council are requested
to give their representatives on the Committee the necessary
instructions in order that the general lines of the programme may be
laid down during its meeting of November 17th.[1] {216} The
Secretary-General will invite the Governments of the States Members of
the League not represented on the Council to forward through him to the
Committee any suggestions which they may think useful with a view to
the preparation of this programme.
2. The Secretariat is requested to collect the data necessary for the
economic and financial investigations relative to the application of
Article 12 of the Protocol, and is authorised to distribute these data
to the competent organs of the League (Economic and Financial
Organisation and Transit Organisation) with a view to the work which
will subsequently be required of them by the Committee.
The Secretariat will obtain information from the official documents at
the disposal of the League or from documents which might, if necessary,
be furnished by the Governments.
3. In conformity with the Assembly resolution, and in order to assist
the Committee in co-ordinating the preparatory work for the Conference,
the Temporary Mixed Commission shall be re-organised and shall take the
name of the Co-ordination Commission, and be composed as follows:
(_a_) The Committee of the Council (ten members) assisted by:
(_b_) The President and one member or two members of each
of the three Organisations, Economic, Financial and
Transit (six members);
(_c_) Six members appointed by the Permanent Advisory
Commission (six members);
(_d_) Two members of the Employers' Group and two members
of the Workers' Group of the Governing Body of the
International Labour Office, appointed by the latter
(four members);
(_e_) If considered advisable, a certain number of
experts--jurists and others--appointed by the Council.
The Secretary-General is requested to invite at a suitable moment the
above-mentioned organisations to appoint their representatives.
[1] The Council, at its 31st Session at Brussels, October 28th, 1924,
"decided itself to undertake at its session in Rome (December, 1924)
the work of preparing for the Conference on the Reduction of
Armaments," instructing the Council Committee to continue and complete
this work and report to the Council at its session in March, 1925.
The work of either the Council or its Committee was dependent to a
large extent upon the receipt of suggestions from Members of the League
which had been requested from them in a circular letter of the
Secretary-General, October 11, 1924.
Various items regarding the Protocol of Geneva were on the Agenda of
the Council for its December, 1924, meeting at Rome. Preparatory work
regarding "the general program" under the second paragraph of Article
17 of the Protocol was the most important. Two other relevant items
were (1) the reorganization of the Temporary Mixed Commission and the
Permanent Advisory Commission into a single co-ordinated Commission;
and (2) the date of the meeting of the Commission of Jurists (appointed
at the Brussels session of the Council in October, 1924) to draft the
amendments to the Covenant contemplated by the Protocol.
A Conservative Government came into power in Great Britain early in
November, 1924, Mr. Austen Chamberlain becoming Foreign Secretary. At
the request of the British Government, the agenda items for the
December, 1924 meeting of the Council at Rome relating to the Protocol
of Geneva were postponed until the March meeting. In the meantime, the
British Government has suggested to the Dominions a meeting of the
Imperial Conference for the purpose of adopting a policy of the British
Commonwealth of Nations regarding the Protocol of Geneva. Whether such
a meeting will be held, or whether the general British policy will be
decided on as a result of correspondence, is not at this writing
certain.
{217}
ANNEX E.
REPORT OF THE BRITISH DELEGATES RELATING TO THE PROTOCOL FOR THE
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES.
_London, November_ 1, 1924.
Sir,
We have the honour to submit herewith a report on the proceedings at
the Fifth Assembly of the League of Nations at Geneva this year in
connection with the Draft Protocol for the Pacific Settlement of
International Disputes.
I.--INTRODUCTION.
The First Assembly of the League of Nations in 1920 prepared to give
effect to article 8 of the Covenant, the first two paragraphs of which
read: "The Members of the League recognise that the maintenance of
peace requires the reduction of national armaments to the lowest point
consistent with national safety and the enforcement by common action of
International obligations. The Council .......... shall formulate
plans for such reduction for the consideration and action of the
several Governments." That Assembly decided "to instruct a Temporary
Commission to prepare reports and proposals for the reduction of
armaments as provided for by article 8 of the Covenant." In the
following year the Second Assembly defined the task more clearly in a
resolution instructing the Temporary Mixed Commission to make proposals
for the reduction of armaments which, in order to secure precision,
"should be in the form of a draft Treaty or other equally defined plan,
to be presented to the Council, if possible, before the Assembly next
year" (1922). In the course of the ensuing year the Temporary Mixed
Commission was able to formulate certain principles which, in its
opinion, might serve as a basis for the draft Treaty which it had been
instructed to draw up. After discussion of these principles the Third
Assembly passed a resolution--the famous {218} Resolution
14--recognising that in existing circumstances many Governments would
be unable to accept responsibility for a serious reduction of armaments
unless they received in exchange a satisfactory guarantee of the safety
of their country, and suggesting that such guarantee could be found in
a defensive agreement binding them to provide immediate and effective
assistance, in accordance with a pre-arranged plan, in the event of one
of them being attacked. The Temporary Mixed Commission were instructed
to prepare a draft Treaty on these lines. The result of their labours
was submitted to the Fourth Assembly last year in the form of the Draft
Treaty of Mutual Assistance, which was referred by the Assembly to the
Governments for their observations.
2. Certain Governments accepted the draft Treaty in principle: very few
intimated their readiness to adhere to its actual terms. His Majesty's
Government, in a note which has already been made public,[1] explained
the reasons which would render it impossible for them to subscribe to
the Treaty.
3. When, therefore, the Fifth Assembly met on the 1st September of this
year, the labours of four years, which had been devoted to the
preparation of a scheme for giving effect to the obligation undertaken
by all signatories in article 8 of the Covenant, had not succeeded in
establishing agreement, and there seemed no prospect of making any
further advance along the path which had hitherto been followed.
4. Some new direction would have to be given, and the presence in
Geneva of the British and French Prime Ministers gave a special
importance to the meeting.
5. It was realised that the problem was not merely to find a general
scheme of disarmament and security, but that the particular question of
French security was of immediate political importance, and would
shortly require a solution. The question of "security" had already
been raised in conversations between Mr. MacDonald and M. Herriot in
July last, at Chequers {219} and in Paris. During the latter meeting,
the subject was discussed at some length, and the position as it was
then left by the two Prime Ministers was set out in the Franco-British
memorandum of the 9th July concerning the application of the Dawes
plan. The relevant paragraph read as follows: "The two Governments
have likewise proceeded to a preliminary exchange of views on the
question of security. They are aware that public opinion requires
pacification: they agree to co-operate in devising through the League
of Nations or otherwise, as opportunity presents itself, means of
securing this, and to continue the consideration of the question until
the problem of general security can be finally solved." In a
declaration made in the Chamber on the 21st August, reporting on the
results of the London Conference, M. Herriot said "security must be the
object of another Conference. He did not see why France should not
take the initiative .......... For the rest, the security question
would be dealt with at Geneva."
6. The debate in the League Assembly was opened by the British Prime
Minister on the 4th September. Mr. Ramsay MacDonald began by
explaining that it was not because they were indifferent to the problem
of national security that His Majesty's Government had given an adverse
opinion on the Draft Treaty of Mutual Assistance. They believed that
security could not be based on military alliances, and they hesitated
to become involved in any agreements which committed them to vague and
indefinite obligations. In this respect the Treaty of Mutual
Assistance was open to criticism, especially in its article 3 and in
its definition of aggression. Mr. Ramsay MacDonald emphasised that the
main problem was the problem of national security in relation to
national armaments, and the initial difficulty was encountered in the
definition of such terms as "security" and "aggression." In regard to
the latter, he said, "the one method by which we can approximate to an
accurate attribution of responsibility for aggression is arbitration,"
and he proposed that the article of the Statute of the Permanent Court
dealing with {220} arbitration should be carefully examined by a
Commission, with a view to its being placed before the Assembly in a
somewhat more precise, expanded and definite form than it now had.
Such a step would be necessary as a preliminary to the discussion of
disarmament, which could produce no good result unless an atmosphere of
confidence were previously created. To summon a Conference on
disarmament without such a preparation of the ground would be to court
immediate and disastrous failure. Such a Conference must be the
ultimate aim, and it must include all the nations and must be held in
Europe. In his view the Covenant already contained ample provisions
for starting arbitration, for the sanctions that were necessary and for
all other eventualities that might arise: what was now required was
that the Covenant should be elaborated. "The British Government thinks
that the matter should now be explored, beginning with the Covenant,
applying the Covenant to our present circumstances, and, in the spirit
of the League of Nations, developing a policy that will give security
and reduce armaments. The British Government stands by the Covenant.
The British Government has no wish to reduce the authority of the
Council. It rather wishes to extend the authority of the Council
consistently with the continued existence and prosperity of the League.
Articles 10, 12, 13, 15 and 16 of the Covenant might well form
themselves into a charter of peace if we would only apply them and fill
them out."
7. Speaking on the following day, the French Prime Minister expressed a
similar view: "It is in the development and the fullest possible
application of the articles of this solemn instrument (the Covenant)
that France seeks for the rules which are to guide her future action
and her foreign policy." M. Herriot welcomed Mr. Ramsay MacDonald's
suggestion that arbitration should be the test of aggression, and he
expressed the hope that the Fifth Assembly would be able to accept the
principle of arbitration, which would solve the difficulties, as
henceforth the aggressor would be the party which refused arbitration.
M. Herriot {221} added: "Arbitration is essential, but it is not
sufficient. It is a means, but not an end. It does not entirely
fulfil the intentions of article 8 of the Covenant, which are security
and disarmament. We in France regard three terms--arbitration,
security and disarmament--as inseparable." A nation which accepted
arbitration had a right to security. "Justice without might is
impotent. Might without justice is tyranny." In conclusion: "We stand
by the Covenant, but we wish to make it a living Covenant. We simply
claim for each nation the rights conferred upon it by the Covenant, no
more and no less."
8. It is unnecessary to indicate in detail the views expressed by other
speakers who participated in this opening debate, from which it was
evident that there was general agreement on a number of points:--
(_a_.) That as a preliminary to disarmament there must be provided
an inclusive scheme for the pacific settlement of international
disputes of all kinds.
(_b_.) That the Covenant of the League itself provided the basis
of such a scheme, but that it required elaboration, precision and
extension in certain directions.
(_c_.) That to give effect to such a scheme States should develop
the principle of compulsory arbitration.
(_d_.) That a State, having accepted this principle, would, if it
resorted to force in disregard of its obligation to submit to
arbitration, be automatically declared an aggressor, and outlawed.
(_e_.) That some form of co-operation must be devised for effective
resistance to aggression, both as a deterrent to any possible
aggressor and as a guarantee of security to all States enabling
them to contemplate a reduction of their own armed forces, which
at present constituted their sole guarantee of safety.
9. In order to give effect to these ideas, a resolution was submitted
to the Assembly on the 6th September by the British and French
delegations in the following terms:--
{222}
"The Assembly,
"Noting the declarations of the Governments represented, observes
with satisfaction that they contain the basis of an understanding
tending to establish a secure peace,
"Decides as follows:--
"With a view to reconciling in the new proposals the divergencies
between certain points of view which have been expressed, and when
agreement has been reached, to enable an international conference
upon armaments to be summoned by the League of Nations at the
earliest possible moment--
"(1.) The Third Committee is requested to consider the material
dealing with security and reduction of armaments, particularly the
observations of the Governments on the draft Treaty of Mutual
Assistance prepared in pursuance of Resolution 14 of the Third
Assembly, and other plans prepared and presented to the
Secretary-General since the publication of the draft Treaty, and
to examine the obligations contained in the Covenant of the League
in relation to the guarantees of security which a resort to
arbitration and a reduction of armaments may require;
"(2.) The First Committee is requested--
"(_a_.) To consider, in view of possible amendments, the articles
in the Covenant relating to the settlement of disputes;
"(_b_.) To examine within what limits the terms of article 36,
paragraph 2, of the Statute establishing the Permanent Court of
International Justice might be rendered more precise, and thereby
facilitate the more general acceptance of the clause;
"And thus strengthen the solidarity and the security of the
nations of the world by settling, by pacific means, all disputes
which may arise between States."
10. This resolution was carried unanimously by the Assembly, which thus
deputed the preparatory work to its First Committee (dealing with legal
and constitutional questions) and its Third Committee (dealing with
reduction of armaments).
{223}
11. It will be more convenient at once to consider the final results of
the labours of the two Committees, leaving for the moment any detailed
account of the progress of their work, in order to see how the draft
Protocol which they submitted to the Full Assembly on the 1st October
gave effect to the ideas which had been proclaimed in the course of the
earlier debate.
12. In the first place it was necessary to complete the scheme of
arbitration and conciliation provided in the Covenant. The Covenant
itself did not provide for every eventuality, and by failing to offer
pacific means of settlement of all disputes, it left open, or seemed to
leave open, in certain circumstances resort to force. Especially was
this so in article 12 of the Covenant, whereby the Members of the
League agreed "in no case to resort to war until three months after the
award by the arbitrators or the report by the Council." Further,
paragraph 7 of article 15 of the Covenant laid down that "if the
Council fails to reach a report which is unanimously agreed to by the
Members thereof, other than the representatives of one or more of the
parties to the dispute, the Members of the League reserve to themselves
the right to take such action as they shall consider necessary for the
maintenance of right and justice." Under article 2 of the Protocol
"the signatory States _agree_ in no case to resort to war either with
one another or against a State which, if the occasion arises, accepts
all the obligations hereinafter set out, except in case of resistance
to acts of aggression or when acting in agreement with the Council or
the Assembly of the League of Nations in accordance with the provisions
of the Covenant and of the present Protocol." The signatory States
having agreed in no case to resort to war, the Protocol proceeds to
prohibit the arbitrament of force and to provide a complete system for
the pacific settlement of disputes. As regards cases covered by
paragraph 2 of article 36 of the statute of the Permanent Court of
International Justice, the signatory States bind themselves to
recognize as obligatory the jurisdiction of that Court, "but without
prejudice to the right of any State, when {224} acceding to the special
Protocol provided for in the said article and opened for signature on
the 16th December, 1920, to make reservations compatible with the said
clause" (article 3). As regards other subjects of dispute, the
Protocol provides a procedure (article 4) which supplements and
completes that defined in article 15 of the Covenant. Briefly, under
this procedure, if the Council is at the outset unable to effect a
settlement, it persuades the parties to submit to arbitration. If
neither party should be willing to go to arbitration, the Council again
takes the matter into consideration: If it reaches a unanimous
decision, the parties are bound to accept that decision: if it fails to
achieve unanimity, the Council itself refers to arbitrators, whose
award is final and binding on the parties to the dispute.
13. Thus for every dispute that may arise there is a procedure of
pacific settlement, and provision has been made in the Protocol for
meeting points (_a_), (_b_) and (_c_) in paragraph 8 above.
14. The establishment of a complete and comprehensive system for the
pacific settlement of all disputes that might arise rendered it easier
to approach the problem of the definition of "aggression." As the
Prime Minister had said, "the one method by which we can approximate to
an accurate attribution of responsibility for aggression is
arbitration." In other words, any State which refused to avail itself
of the means at hand for a peaceful settlement of a dispute, or which
refused to accept the award given by the arbitral body or bodies now
provided, and proceeded to an act of war, would brand itself as the
aggressor. This principle is embodied in article 10 of the Protocol,
which thus gives effect to the idea indicated in paragraph 8 (_d_)
above. The definition of aggression is extended by articles 7 and 8 of
the Protocol to apply to military measures taken before or during
proceedings for a pacific settlement, and to acts constituting a threat
of aggression against another State.
15. The point raised in paragraph 8 (_e_) above is dealt with in
article 11 of the Protocol. Directly aggression takes place, {225} the
Council calls upon the signatory States to apply sanctions against the
aggressor (article 10). As soon as the Council has thus called upon
the signatory States, "the obligations of the said States, in regard to
the sanctions of all kinds mentioned in paragraphs 1 and 2 of article
16 of the Covenant, will immediately become operative in order that
such sanctions may forthwith be employed against the aggressor. Those
obligations shall be interpreted as obliging each of the signatory
States to co-operate loyally and effectively in support of the Covenant
of the League of Nations, and in resistance to any act of aggression,
in the degree which its geographical position and its particular
situation as regards armaments allow." Article 12 of the Protocol
provides for the establishment of plans for putting into effect
economic and financial sanctions, and article 13, "in view of the
contingent military, naval and air sanctions provided for by article 16
of the Covenant," empowers the Council "to receive undertakings from
States determining in advance the military, naval and air forces which
they would be able to bring into action immediately to ensure the
fulfilment of the obligations in regard to sanctions which result from
the Covenant and the present Protocol."
16. Article 11--the "sanctions" article--has been more closely
scrutinized and has been the subject of more criticism than any other
article of the draft Protocol, and a hasty examination of it by some
critics has led them to object that it goes beyond article 16 of the
Covenant and imposes fresh obligations on the signatory States. In
reply to such critics, it may be best to quote the words used by the
British delegate in his speech to the Third Committee on the 22nd
September:--
"It cannot be too strongly emphasized that everything in this
article is already stated or implied in article 16 of the
Covenant. We are remaining within the terms of the Covenant and
we are undertaking no new obligations .......... Surely loyal
and effective co-operation in support of the Covenant is what
may confidently be expected from every Member of the League of
{226}
Nations .......... The extent of the co-operation must depend on
the actual circumstances not only as regards the aggression but
also as regards the geographical position and the resources of
all kinds of individual States. It would be no use to bind
oneself to do a variety of things which may not be required. We
must and we can rely on the good faith of the Members of the
League to decide themselves how their effective co-operation can
best be given if and when the necessity arises."
17. In order to complete the fulfilment of the task assigned to the
committees by the Assembly's resolution of the 6th September, the
Protocol finally provides (article 17) for the summoning in June next
year of an International Conference for the reduction of armaments, to
meet in Geneva and to include representatives of all states whether
Members of the League or not. M. Herriot first, and other speakers
after him, had emphasised the interdependence of the three great
problems of arbitration, security and disarmament, and the framers of
the Protocol, bearing this in mind, have been careful to preserve this
interdependence in the document itself. Thus if sufficient
ratifications of the Protocol have not been received by a certain date,
the Conference on Disarmament is to be postponed. In any case, the
Protocol does not come into force until that Conference shall have
adopted a plan for the reduction of armaments. And if within a further
period, that plan has not been carried out, the Protocol becomes null
and void.
18. The above brief summary indicates how in the Protocol the
committees of the Assembly have sought to embody, in concrete form, the
proposals made to the Assembly itself by the British and French Prime
Ministers. The Protocol is an attempt to complete the Covenant, to
facilitate and develop the procedure of pacific settlement provided
therein, and to define more clearly the obligations imposed by it on
States Members of the League. The Protocol is based on the Covenant
and keeps within its terms except in so far that it extends the
Covenant procedure to give an alternative procedure by peaceful {227}
settlement, even in those cases for which the framers of the Covenant
in 1919 were unable to find a remedy. So far as it contains anything
new, it is to be found in the definition of aggression which follows as
a necessary corollary to the limitations inserted in the establishment
of a universal system of peaceful settlement. But even here the
principle is not new. Article 16 of the Covenant decreed that
sanctions should be applied against any Member of the League that might
"resort to war in disregard of its Covenants under articles 12, 13 or
15." Article 10 of the Protocol decrees sanctions against any State
resorting to war without availing itself or in defiance of, the
procedure of pacific settlement provided in the Covenant as amplified
by the Protocol itself. The amplification of that procedure to cover
all cases, so as to remove all excuse for resort to war, has enabled
the framers of the Protocol to give a more exact definition of
aggression, and to make that definition more certain and more
automatic. The Protocol is thus free from the reproach that had been
levelled against the Draft Treaty of Mutual Assistance, which left a
wide and dangerous discretion to the Council in determining which party
to a dispute was the aggressor. It further discards the system
proposed in the draft Treaty, whereby power was given to the Council to
decide on and to direct the military sanctions required. The draft
Treaty tended towards the realisation of the idea of the League as a
"super-State": the Protocol respects the principle of national
sovereignty. Every State retains its own liberty of action: it is
still free to choose what it will do. The Protocol has stated in
clearer terms what is expected of those who signed the Covenant in
1919, and it is to be hoped that this more explicit declaration may
serve to deter those who would contemplate a violation of the spirit of
the Covenant, whilst reassuring those who have hitherto sought safety
in their own armed strength, by giving them confidence in the
solidarity of the civilised nations and in their determination to
resist all unscrupulous attempts to plunge the world again into the
disaster of war.
{228}
19. It remains only to say a few words as to the actual procedure
adopted by the Assembly for putting into effect the scheme thus
elaborated. It was generally agreed that mere resolutions of the
Assembly would not give sufficient assurance of progress. The famous
Resolution 14 of the Third Assembly had been discussed and debated and
had seemed to lead to an impasse with the rejection of the Treaty of
Mutual Assistance. The Prime Minister, in his speech to the Assembly,
had said: "Let us see to it that even before we rise, before the
Assembly breaks up, some substantial progress shall be made in
co-ordinating these ideas and in producing from their apparent
diversities some measure of agreement and consent." It was therefore
decided that the scheme should be embodied in the form of a Protocol,
ready for signature, and that the Assembly should pass a resolution
endorsing the principles contained therein, recommending the Protocol
to the Governments for their acceptance, and directing that it should
be opened immediately for signature. The terms of this Resolution,
which was carried unanimously, have already been published.
20. The Protocol itself was signed in Geneva by Delegates of the
Governments of Albania, Bulgaria, Esthonia, France, Greece, Latvia,
Poland, Portugal, the Serb-Croat-Slovene State and Czechoslovakia. The
Delegate of France at the same time signed on behalf of his Government
the special Protocol opened for signature in virtue of article 36,
paragraph 2, of the Statute of the Permanent Court of International
Justice, making the following declaration:--
"I hereby declare that, subject to ratification, the French
Government gives its adhesion to the optional clause of article
36, paragraph 2, of the Statute of the Court, on the condition of
reciprocity, for a period of fifteen years, with power of
denunciation, should the Protocol of Arbitration, Security and the
Reduction of Armaments, signed this day, lapse, and further,
subject to the observations made at the First Committee of the
Fifth Assembly, according to the terms of which 'one of the
{229}
parties to the dispute may bring the said dispute before the
Council of the League of Nations for the purposes of the pacific
settlement laid down in paragraph 3 of article 15 of the Covenant,
and during such proceedings neither party may take proceedings
against the other in the Court.'"
21. Having briefly summarized the discussion which gave rise to the
elaboration of the draft Protocol, and having examined in what way that
instrument embodies the ideas expressed in that discussion, it may be
of interest to review summarily the progress of the work of the two
Committees of the Assembly that were charged with the drafting of the
scheme, and to show how the various articles were evolved.
22. It will be seen from the terms of the resolution of the 6th
September that the scheme of "arbitration, security and disarmament,"
though forming one indivisible whole, would require the deliberation of
two of the regular Committees of the Assembly. The First Committee,
dealing with the legal questions, would have to develop the principle
of arbitration, while the Third Committee, dealing with the reduction
of armaments, would have to consider the problems of security and
disarmament.
23. It was realised that the work would overlap at many points, and the
two Committees kept in constant touch throughout, the result of their
labours being finally co-ordinated by a joint drafting sub-Committee.
24. During the whole period of discussion the British Delegation kept
in close touch with the Dominion and Indian Delegations, who were
consulted on all points of difficulty, and who were given every
opportunity of expressing their views. This was done, not only by
means of private consultation, but also at fourteen formal meetings of
the Delegations.
25. In the following sections an attempt is made to trace the evolution
of the Protocol through its various stages in the First and Third
Committees.
{230}
II.--WORK OF THE FIRST COMMITTEE.
26. The first plenary meeting of the First Committee was held on the
2nd September, when Sir Littleton Groom (Australia) was elected
Chairman, and M. Limburg (Netherlands) Vice-Chairman. Sir C. Hurst
represented the British Empire.
27. On the 9th September the Committee began its deliberations on the
Assembly resolution of the 6th September regarding arbitration,
security and disarmament. The Assembly, by this resolution, instructed
the First Committee:--
"(_a_.) To consider, in view of possible amendments, the articles
in the Covenant relating to the settlement of disputes;
"(_b_.) To examine within what limits the terms of article 36,
paragraph 2, of the Statute establishing the Permanent Court of
International Justice might be rendered more precise, and thereby
facilitate the more general acceptance of the clause;
"and thus strengthen the solidarity and security of the nations of the
world by settling by pacific means all disputes which may arise between
States."
28. The British Delegation commenced their labours by considering the
second of these two tasks, as it was a British suggestion emanating
from the Prime Minister himself. The question of the acceptance by His
Majesty's Government of the principle of compulsory arbitration for
legal disputes, as provided in the optional clause referred to in
article 36, paragraph 2, of the Statute establishing the Permanent
Court of International Justice, had been examined in London before the
meeting of the Assembly. This examination had shown so clearly the
difficulties which might arise in connection with disputes with neutral
Powers arising out of British naval action in time of war, that the
limitation of the acceptance by his Majesty's Government of the
optional clause by the exclusion of disputes arising out of British
belligerent action at sea was suggested. To achieve this it was
proposed that His Majesty's Government {231} should make a reservation
as to disputes arising out of action taken in conformity with the
Covenant, or at the request, or with the approval, of the Council of
the League.
29. The suggestion was accepted by the British Delegation. As however,
the question was clearly one which affected the Empire as a whole, the
Dominion and Indian Delegations were especially consulted in regard to
it. The position as it appeared to the British Delegation was fully
explained to them, and it was understood that they would telegraph to
their respective Governments, making clear the nature of the
reservation proposed.
30. The general discussion by the First Committee of the subject of the
acceptance of the compulsory jurisdiction of the Permanent Court of
International Justice took place at the third plenary meeting on the
11th September. The British Delegate reminded the Committee that the
views of His Majesty's Government had already been explained in the
Assembly in regard to the optional clause. The Prime Minister had then
stated that the British Government wished to sign a clause of this
kind, subject to its being clearly drafted. The British Delegate
proceeded to discuss the position of the British Empire supposing that
it accepted the compulsory jurisdiction of the Court, and was then
forced, in support of the Covenant, to go to war at sea. Sea warfare,
he said, inevitably brought a belligerent into sharp conflict with the
nationals of foreign Powers carrying on trade with the enemy State.
The British Empire might therefore find itself forced to support before
the International Court the legality of action taken at the request of
the League itself. The British Delegation therefore asked the
Committee to consider whether it would be possible, either by amendment
of article 36, paragraph 2, of the Statute of the Court or by the
admission of a reservation acceptable to other Members of the League,
to exclude from the acceptance of that clause disputes which arose out
of action taken, either in accordance with the Covenant, or at the
request, or with the sanction, of the Council of the League.
{232}
31. The French Delegation were content with the idea of such a
reservation, and both the Belgian and Brazilian Delegations stated that
they had no objection to it. The delegate of Brazil, however, said he
would prefer to proceed by way of a reservation rather than by any
modification of the text. Though the representatives of the
Netherlands and of Sweden were slightly more critical, it became
apparent that no real objection would be raised to the British
reservation.
32. The Belgian Delegate suggested even going further still and
excluding, when accepting the optional clause, the whole of sub-heading
(_b_), which relates to questions of international law. The effect of
this would be to exclude all questions of international law where that
law has not yet been codified, as where it has been codified the
dispute becomes one of the interpretation of a Treaty. This, the
British Delegation thought, would be going too far. It would deprive
the International Court of the power to build up a case law in the
international field. It would, moreover, have gone further than the
Delegation felt necessary, because it was only in the field of
established international law, where there are two distinct schools of
thought--the continental and the Anglo-Saxon--that the difficulties
referred to by the British Delegate would arise.
33. As regards the question of amendments to the Covenant, the French
representative did not, during the general discussion in a plenary
meeting of the First Committee, specify the nature of the amendments
suggested by the French Delegation. He contented himself with drawing
attention to three points. The first was the last sentence of article
13 of the Covenant, which provides that in the event of any failure to
carry out an arbitration award, the Council shall propose what steps
shall be taken to give effect thereto. This the French Delegation
regarded as inadequate. The second was the provision of article 15 by
which, if the Council cannot reach a unanimous decision, the parties to
a dispute which is submitted to the Council recover their liberty of
action. Here, he said, was a gap in the {233} Covenant which must be
filled. Was the position to be perpetuated, he asked, by which any one
member of the Council could completely prevent a peaceful settlement of
a dispute? The third was paragraph 8 of article 15, which provides
that in matters within the domestic jurisdiction of a State the Council
can make no recommendation. The French Delegation asked the Committee
to consider whether it would not be possible to discover a method of
friendly conciliation over matters relating to domestic jurisdiction.
34. After the general discussion had been declared closed, the First
Committee adjourned for a week and entrusted to a sub-committee, known
as the Fifth Sub-Committee, the task of formulating concrete proposals.
The work done by this sub-committee was of such importance that it is
considered desirable to indicate its composition, which was as follows:
Mr. Adatci (Japan).
Count Albert Apponyi (Hungary).
M. Loucheur (France).
Mr. John O'Byrne (Irish Free State).
M. Erich (Finland).
M. Raul Fernandez (Brazil).
Sir Cecil Hurst (British Empire).
M. Nicolas Politis (Greece).
M. Rolin (Belgium).
M. Vittorio Scialoja (Italy).
M. Nicolas Titulesco (Roumania).
M. Torriente (Cuba).
M. Limburg (Netherlands).
M. Unden (Sweden).
35. The discussion was taken up on the 12th September in the
sub-committee on the lines of the general debate in the full Committee.
The meetings were not open to the public. As regards the proposed
British reservation to the acceptance of the obligatory jurisdiction of
the Permanent Court of International Justice, by signing the optional
clause in the Statute of the Court, some opposition developed at first
from two quarters. Subsequently, however, it waned and did not
reappear.
{234}
36. As regards the extension of the principle of arbitration by
amendments to the Covenant, it at once became clear that there were
many conflicting views as to the best system to adopt. The days were
spent mainly in ascertaining, inside and outside the sub-committee, the
extent and the nature of the different points of view.
37. The work on which the sub-committee was engaged was intimately
related to the questions of security and disarmament with which the
Third Committee was dealing. On the 16th September, Dr. Benes,
chairman of the sub-committee of the Third Committee, who had been in
close touch with the British and French Delegations, produced a draft
Protocol covering the whole ground, in which he had attempted to
reconcile opposing points of view and which was intended to serve as a
basis for discussion. Articles 1, 2, 3 and 5 of this draft Protocol
concerned the First Committee and were referred to the sub-committee.
They may be summarised as follows:--
38. _Article_ 1.--The signatories recognise the jurisdiction of the
Permanent Court of International Justice as compulsory, "subject to the
following reserves":--
39. _Article_ 2.--The signatories undertake to submit all disputes, not
covered by articles 12, 13 and 15 of the Covenant, to the Council of
the League, subject to an express reserve as to the right given
exclusively to the Assembly in article 19 of the Covenant, whereby the
Assembly alone is entitled to advise the reconsideration of existing
treaties. The Council in such cases to act as an arbitration tribunal
and to decide by a majority vote. Pending an examination of the
dispute the Council may, by a majority, define measures to be taken by
the parties to avert or put an end to armed conflict. Similarly, the
Council may, in case of imminent danger, call upon the parties to
discontinue any measure likely to cause the dispute to become more
acute.
40. _Article_ 3.--The procedure laid down in article 2 to apply to the
Permanent Court in cases concerning the competence of that Court.
{235}
41. _Article_ 5.--Any signatory which does not submit its disputes to
the methods of pacific settlement indicated above, or which does not
comply with the provisional measures referred to in article 2, or which
does not carry out an award of a duly qualified arbitral body, shall,
if these acts of non-compliance are likely to disturb the peace of the
world, be declared to be an aggressor and outlawed, the declaration to
be made by the Permanent Court or by the Council acting, if need be, by
a majority. When this declaration has been made, the Council is to
call on Members of the League to put into operation the sanctions
contained in article 7.
42. Consideration of these proposals and of those contained in two
other schemes submitted led to long discussions in the Committee.
These discussions served mainly to bring into relief the different
schools of thought. One favoured the widest possible extension of the
jurisdiction of the Permanent Court, even into the field of disputes of
a political nature; the other held that the Court's jurisdiction should
be rigidly limited to disputes of a legal character, while a
far-reaching system of arbitration should be established to deal with
political disputes. Strong disinclination was shown towards any
increase in the existing powers of the Council. On the other hand, it
was made clear that no decrease of those powers would be tolerated. On
one side it was urged that the Council, when acting as an arbitral
body, should make its decisions by a majority vote; on the other,
strong exception was taken to any departure from the unanimity rule.
As regards the application of sanctions, one group held that mere
refusal to arbitrate or failure to carry out an award should justify
their application. Another contended equally strongly that sanctions
should only be applied when such refusal or failure was accompanied by
a resort to war. The extent to which war was legitimate under the
Covenant in cases relating to domestic jurisdiction was very fully
discussed. The net result was a unanimous agreement to leave paragraph
8 of article 15 untouched.
{236}
43. As regards the filling of the gap in article 15 of the Covenant,
little progress was made. On the 19th September, therefore, the
British representative submitted a scheme to the sub-committee, in
which he had endeavoured to meet the differences of opinion which had
been expressed. This scheme provided for the acceptance as compulsory
of the jurisdiction of the Permanent Court in the cases covered by
article 36, paragraph 2, of the Statute of the Court, with such
reserves as may be consistent therewith. Its main object was, however,
the amendment of the Covenant on the lines of the following text:--
"The undersigned will support the introduction of amendments to
article 15 of the Covenant for the purpose of amplifying paragraphs
4, 5, 6 and 7 of that article on the following lines:--
"If the dispute submitted to the Council is not settled by it as
provided in paragraph 3, the Council shall endeavour to persuade
the parties to submit the dispute to judicial settlement or
arbitration.
"If the parties cannot agree to do so, the Council shall again
take the dispute under consideration, and, if it reaches a report
which is unanimously agreed to by the Members thereof other than
the representatives of the parties to the dispute, the Members of
the League agree to accept the recommendations contained in the
report.
"If the Council fails to reach a report which is concurred in by
all the members other than the representatives of the parties to
the dispute, and if the parties are still unable to agree to refer
the dispute to arbitration, the Council is empowered to refer the
dispute to arbitration on their behalf. One-half of the members
of the tribunal, excluding the president, shall be appointed by
the Council, after consultation with one party to the dispute, and
the other half after consultation with the other party to the
dispute. The president shall be appointed by the Council after
consultation with the Permanent Court of International Justice if
in session, or, if not in session, with the members of its chamber
of summary jurisdiction.
"The Members of the League agree that they will comply with the
{237}
recommendations contained in any award of the Arbitration Tribunal
set up by the Council as above.
"In the event of any failure to comply with the recommendations of
a report concurred in by all the Members of the Council other than
the parties to the dispute or in any award of an arbitration
tribunal set up by the Council as above, the Council shall exert
all its influence to secure compliance therewith. If such failure
to carry out the recommendations is accompanied by any resort to
war, the sanctions provided for in article 16, interpreted as
provided in this Protocol, shall be applied."
44. The British Delegate explained that the willingness of Governments
to amend the Covenant must be clearly expressed in the Protocol. In no
other way could the danger of creating within the League an inner ring
of Powers, bound towards each other by ties and obligations more close
than those binding the ordinary members of the League, be avoided. The
drafting of amendments to the Covenant was, however, a technical
matter, and time was short. He therefore suggested that the Council
should be asked to set up a committee of experts to draft the
amendments to the Covenant contemplated by the Protocol.
45. These proposals provided the bases of articles 1, 3 and 4 of the
Protocol and of paragraph 3 of the Assembly Resolution of the 2nd
October. The bases of articles 2 and 5 had already been established.
Article 10 was beginning to take shape in new drafts in substitution
for Dr. Benes's definition of an aggressor. On the 21st September
these articles were provisionally adopted by the joint drafting
committee of the First and Third Committees. At this stage, therefore,
for the first time, the substance of a workable text on the subjects
referred to the First Committee began to emerge from the shadow of
discussion.
46. Throughout this period, however, the negotiations had been carried
on entirely in the sub-committee in secret sessions. Although the
closest possible touch had been kept by the British Delegation with the
Dominion and Indian Delegations, the British representative felt
himself to be in a position {238} of great responsibility in carrying
on the work in the sub-committee. He felt that a stage had been
reached where a wider consultation was necessary, as, with the
exception of the Attorney-General of the Irish Free State, who was
unfortunately obliged to return to Ireland about this date, he was the
only British member. He proposed, therefore, that the work of the
sub-committee should be reported to the full Committee on which all the
Dominion and Indian Delegations were represented. The full Committee
thereupon met on the 24th September, and then and at further meetings
held on the 25th, 26th, 27th and 28th September, the articles of the
Protocol were fully discussed in public sessions. The articles of the
Protocol under consideration thus took their shape in the
sub-committee, they were then submitted to the Joint Drafting Committee
representing the First and Third Committees, and were then finally
approved after public discussions in Committee No. 1. Here, then, it
will be convenient to deal with the purpose and evolution of each
article separately.
_The Preamble._
47. The draft of the Preamble, as revised by the Joint Drafting
Committee of the First and Third Committees, was adopted at a plenary
session of the First Committee on the 27th September. The Lithuanian
Delegate made a reservation that the reference to territorial security
in no way prejudiced existing disputes between States signing the
Protocol. The Portuguese Delegate proposed an amendment to substitute
for the word "territories" in the first sentence, the phrase
"territories under the sovereignty of States." The object was to make
it clear that oversea territories under the sovereignty of a State were
not excluded, but the British representative reminded the committee of
the nature of the varied character of the territories of the British
Empire, and said that if one class of oversea territories were
mentioned, all must be mentioned. The amendment was rejected.
{239}
_Article 1._
48. Article 1 was designed to ensure that the universality of the
League should be maintained even if the Protocol comes into force. For
a while there must no doubt be a dual régime. States signatory to the
Protocol will be bound by its terms, and the régime of the Covenant
will continue to exist and to be binding upon States members of the
League. This will, however, not last, as the principal provisions of
the Protocol will be transformed into amendments to the Covenant.
_Article 2._
49. Article 2 was intended to make all aggressive war illegal.
Exceptions were, however, made to safeguard (1) the right of a State to
fight in self-defence, and (2) the position of a State acting in
accordance with the provisions of the Covenant or the Protocol. A
proposal, strongly urged, to substitute the words "resort to force" for
the words "resort to war" was rejected.
_Article 3._
50. Article 3 provides for the compulsory recognition of the
jurisdiction of the Permanent Court. The Joint Drafting Committee
proposed to remove this article from the Protocol, as certain
Delegations felt it went beyond the Assembly Resolution. The British
Empire Delegation feared that this might result in the separation of
the three principles--arbitration, security and disarmament. At the
suggestion of the British representative, therefore, the article was
retained. As a result of the discussions on this matter, it was
generally agreed that the power to make reservations to article 36 of
the Permanent Court Statute was much wider than had been at first
believed. It was understood that the proposed British reservation was
within the limits admissible.
_Article 4._
51. Article 4 was designed to extend the system of {240} arbitration
contained in the Covenant and to fill the existing gap in article 15 of
the Covenant, by which the parties to a dispute recover their liberty
of action and are entitled to resort to war if the Members of the
Council are unable to agree upon a unanimous report. In the
sub-committee a strong feeling manifested itself against unanimous
decisions of the Council being binding in cases where one party to a
dispute, but not both, desired arbitration. Certain of the smaller
States, in particular, felt that such a system gave too much power to
the Council, which was already regarded as a body which expressed only
the will of the great Powers.
52. Paragraphs 2 (_a_) and (_b_) of article 4 were drafted to avoid
this difficulty. Arbitration is to be compulsory at the request of one
of the parties, and the Council is given power to appoint the arbitral
body if the parties cannot agree as to its constitution. A unanimous
decision of the Council is only to be binding where none of the parties
ask for arbitration. If, therefore, any party wishes to avoid a
decision by the Council, it has only to ask for arbitration. For
similar reasons, the words "accepted by one of the parties" were added
after the words "decision of the Council" in paragraph 5.
53. Discussions in the sub-committee revealed a divergence of view as
to whether or not sanctions should be applied in the event of passive
resistance to the award of the Arbitral Commission. It was finally
agreed that the provision contained at the end of article 13 of the
Covenant would be sufficient to meet a case of passive resistance and
that the sanctions of article 16 should only be applied when such
resistance was accompanied by a resort to war (_vide_ paragraph 6 of
article 4).
54. At the request of the British representative, paragraph 7 was added
to ensure that reservations, similar to that which the British
Delegation considered that it would be obliged to make if the British
Empire accepted article 36 of the Statute of the Permanent Court, would
also exist in the case of the new system of compulsory arbitration.
{241}
_Article 5._
55. Article 5 was inserted as the result of a unanimous decision of the
sub-committee to leave untouched paragraph 8 of article 15 of the
Covenant, which safeguards the rights of States Members in regard to
matters of domestic jurisdiction. The whole British Empire Delegation
held the view that when the Arbitration Commissions were faced with
such questions, they should be bound to refer them to the Permanent
Court, and that the opinion of the Court should be binding. As the
Permanent Court itself is bound to apply international law, and
paragraph 8 of article 15 refers to questions which by _international
law_ are solely within the domestic jurisdiction of the State
concerned, this provision ensures that a uniform rule will be applied
by the Council, the Permanent Court and the arbitral bodies to be set
up under the new system.
56. The last sentence of article 5 was added to meet certain
difficulties raised by the Japanese Delegation. They pointed out that
the second gap in the Covenant, referred to by the French Delegation
during the general discussion, had not been filled. On the 24th
September, they accordingly proposed an amendment to article 5, which
appeared to have the effect of giving the Council power, in cases
relating to domestic jurisdiction, to recommend the parties to adopt
some solution which would ensure a pacific settlement of the dispute.
After the discussion in the sub-committee, the Japanese Delegation
modified this proposal and suggested that the following words be added
as the final paragraph of article 5:--
"The above provisions do not prejudice the duty of the Council to
endeavour to bring the parties to an agreement so as to ensure
the maintenance of peace and a good understanding between nations."
This proposal came up before the plenary session of the First Committee
on the 25th September. The British Delegation asked for a postponement
of the discussion. Immediate steps were {242} taken to consult the
Dominion and Indian Delegations, and in the subsequent negotiations the
closest co-operation with them was maintained.
57. It transpired that the Japanese Delegation, if they failed to
secure acceptance of this amendment to article 5, intended to press for
the exclusion from article 10 of the sentence at the end of paragraph 2
(1), which included in the definition of an "aggressor" a State which
resorted to war and disregarded a unanimous report of the Council or a
judicial sentence or an arbitral award recognising that the dispute
arose out of a matter within the domestic jurisdiction of the other
State concerned. They pointed out that it was unjust that in such
cases the League, while refusing pacific means of settlement to an
injured State, should denounce that State as an aggressor if it took
steps to defend its legitimate interests by force.
58. The possible effect of this alternative amendment was regarded by
many Delegations with great concern. It would have suggested the
legitimacy of a resort to war in connection with a dispute arising out
of some domestic matter as to which the Council could give no help and
make no recommendation for its solution.
59. In these circumstances the British Empire Delegation was agreed
that the best course was to endeavour to find a solution by enlarging
article 19 of the Protocol, so as to make it clear that the existing
power of the Council, under article 11 of the Covenant, of endeavouring
to achieve a pacific settlement in any case where the peace of the
world was endangered, was not prejudiced by the provisions of the
Protocol. Though the discussions of the matter remained very friendly
in tone this proposal did not prove acceptable to the Japanese
Delegation. Accordingly, when the amendment came before the plenary
meeting of the First Committee on the 28th September, the Japanese
Delegation withdrew their amendment to article 5 and proposed the
amendment to article 10. At the suggestion of the French Delegate the
question was referred back to the sub-committee.
{243}
60. Late on the 29th September the basis of solution was found. It was
immediately submitted to the representatives of the Dominions and
India, and was fully considered by them at two further meetings on the
following day. After slight modifications the text of two amendments
proved acceptable to the British Empire Delegation, and after being
accepted by the Japanese and French Delegations, these amendments were
adopted by the First Committee. They involved the addition to the last
sentence of article 5 of the words "this decision shall not prevent
consideration of the situation by the Council or the Assembly under
article 11 of the Covenant," and the addition at the end of paragraph 2
(1) of article 10 of the words "nevertheless in the last case the State
shall only be presumed to be an aggressor if it has not previously
submitted the question to the Council or the Assembly in accordance
with article 11 of the Covenant."
61. In the opinion of the British Empire Delegation these amendments
conferred no new powers or functions on either the Council or the
Assembly. They merely served to make clear the relationship between
paragraph 8 of article 15 and article 11 of the Covenant. Article 11
of the Covenant only operates in time of war or threat of war, and it
confers no right on the Council or the Assembly to impose a solution of
a dispute without the consent of the parties. The Council or the
Assembly may mediate and conciliate, but they cannot make
recommendations which are binding under paragraph 6 of article 15 of
the Covenant. When these amendments were adopted at the final plenary
meeting of the First Committee on the 30th September, the British
representative made a statement on the above lines. This
interpretation proved generally acceptable, and it was agreed to
incorporate it in the report to be submitted to the Assembly.
62. At the final plenary meeting of the First Committee the British
representative drew attention to the difficulty in which many
Delegations were placed, in that they had had no {244} opportunity to
consult their Governments in regard to these amendments. The
Delegations of Australia and several other countries thereupon stated
that, though they accepted the texts, they could not commit their
Governments in any way.
_Article 6._
63. Article 6. When the system of compulsory arbitration, contained in
article 4, had been established, the British representative pointed out
that under paragraphs 9 and 10 of article 15 of the Covenant a dispute
might still be referred to the Assembly. Article 6 was therefore
drafted to ensure that the provisions referring to the actions and
powers of the Council should apply to the Assembly under the new
system. After considerable discussion it was decided to reserve
questions of procedure to the Council as being a more suitable body.
_Article 10._
64. Article 10, which contains the definition of an aggressor, provided
one of the most difficult tasks of the First Committee. By the 23rd
September a number of drafts had been considered but no satisfactory
text had been found. The original idea was that it should be the duty
of the Council to determine the aggressor, but the question then arose
as to whether, in making this decision, the Council should act
unanimously or by majority vote. Adherence to the unanimity rule would
have made it possible for one State to prevent a decision being
reached. Procedure by a majority vote might have resulted in a State
being obliged to apply sanctions against its own judgment. The only
way out of this difficulty was to avoid a decision by the Council at
all, and to make the test of aggression automatic, when once certain
conditions had been found to obtain. This is achieved by establishing
a presumption which is to hold good until the Council has made a
unanimous decision to the contrary. If the presumption stands it is
considered sufficient to justify the application of sanctions. Even
then it was thought that there would have to be something in the nature
of a {245} "declaration of aggression" in order to initiate the
enforcement of sanctions, and that this declaration would have to be
made by unanimity. Objections were raised to this, but these
objections were finally satisfied by the insertion of paragraph 3,
according to which the Council, if it cannot at once determine the
aggressor is bound, as a matter of course, to enjoin an armistice upon
the belligerents.
65. The Japanese Delegation were opposed to any presumption of
aggression arising against a state which was involved in a dispute
covered by paragraph 8 of article 15 of the Covenant, and found as the
result that, though it had submitted the dispute to the Council, the
Council were unable to make any recommendations on the subject. To
meet this view, the amendment previously referred to was made to
article 5, and the words "nevertheless in the last case the State shall
only be presumed to be an aggressor if it has not previously submitted
the question to the Council or the Assembly in accordance with article
11 of the Covenant" were added to paragraph 2 (1) of article 10. In
the opinion of the British Delegation, this amendment does not affect
paragraph 3 of article 10. If a resort to war occurs, and the Council
cannot determine the aggressor, it is still bound to impose an
armistice upon the belligerents.
66. To the final paragraph of article 10 the words "and any signatory
State thus called upon shall thereupon be entitled to exercise the
rights of a belligerent" were added at the suggestion of the British
representative. This addition was made to safeguard the position of a
State which, though no party to the dispute, joined in coercive
measures to uphold the Covenant of the League and in so doing took
forcible measures against the persons or the property of nationals of
another State.
_Article 16._
67. The relations between States signatory to the Protocol and States
non-signatory and non-members of the League presented a problem the
solution of which required great care. {246} The various aspects of
the question were thoroughly examined, and it was finally agreed that
it would be sufficient to bring the principle contained in article 17
of the Covenant into harmony with the provisions of the Protocol.
Sanctions can only be imposed on a State which is not a Member of the
League if it refuses to accept the conditions and obligations of the
Protocol when invited to do so, and resorts to war against a signatory
State.
68. The question was raised of the relationship between States Members
of the League signatory to the Protocol and non-signatory States
Members. After careful examination, it was generally agreed that no
special arrangement was necessary. The Members of the League are bound
_inter se_ by the Covenant and non-signatory Members are entitled, if
they wish, to prefer the procedure laid down in the Covenant to the new
procedure of the Protocol.
_Article 18._
69. Article 18 was inserted to satisfy apprehensions which had been
expressed in certain quarters. The British Delegation were not
convinced of its necessity, but saw no reason to object to it.
_Article 19._
70. Article 19 was inserted as a saving clause. It emphasises the
intention to preserve the Covenant as the principal document governing
the relations between States Members of the League. The relations
between signatories and non-signatories to the Protocol are still to be
governed by the Covenant. The Covenant is to stand, but it is to be
enriched by the principal provisions of the Protocol. The amended
Covenant is intended ultimately to take the place of the separate
régime of the Protocol.
_Resolution No. 1._
71. It had been originally suggested that the provisions of {247} the
Protocol should be embodied in the form of resolutions to be submitted
for adoption by the Assembly. In view, however, of the fact that
adoption of such resolutions by the Assembly might be held to commit
the Governments there represented to the acceptance of its provisions,
and in view of the difficulty which Delegations found in consulting
their Governments, this proposal was found to be impracticable. It was
thereupon decided that the Protocol should be drawn up as a separate
instrument, and that its acceptance should be recommended by the
Assembly to all States Members of the League.
72. The draft of a resolution on these lines, which had been drawn up
by the British representative, was discussed by the First Committee on
the 27th September. Paragraph 1 recommends the acceptance of the
Protocol. Paragraph 2 provides that the Protocol shall be open
immediately for signature for those representatives who were already in
a position to sign. This was added in view of the fact that the French
and several other Delegations had announced their intention to sign the
Protocol before leaving Geneva. Paragraph 3 was inserted because it
was felt that the drafting of amendments to the Covenant was too
technical a matter to be done hastily.
73. The remaining paragraphs of the resolution relate to the proposed
Disarmament Conference which was dealt with by the Third Committee.
The resolution was unanimously adopted by the Assembly on the 2nd
October.
_Resolution No. 2._
74. This resolution recommends the acceptance of the obligatory
jurisdiction of the Permanent Court of International Justice at The
Hague by all Members of the League. The discussions regarding the
special Protocol opened for signature in virtue of article 36,
paragraph 2, of the Statute of the Permanent Court, had revealed that
the power to make reservations was wider than had been at first
thought. It was therefore decided that no new Protocol was required,
but that the power to make {248} reservations should be clearly
recognised in the resolution of the Assembly.
_M. Politis's Report._
75. M. Politis's draft report on the work of the First Committee was
presented to the Committee on the 28th September, and the discussion
upon it lasted all day. This draft, which was very ably drawn up, gave
a remarkably clear and adequate account of the achievement of the First
Committee.
76. Some criticism was made by the representative of Hungary and others
of a tendency in the report to give peace a secondary position to that
of justice in the predominating idea of arbitration. As a result, the
offending passages were redrafted.
77. In its final form M. Politis's report was incorporated in the
general report submitted to the Fifth Assembly by the First and Third
Committees. This general report[2] was adopted unanimously by the
Assembly on the 2nd October, and it can thus be regarded as the
official document containing the views of the Members of the League in
regard to the interpretation of the Protocol.
III.--WORK OF THE THIRD COMMITTEE.
78. The Third Committee began its deliberations on the Assembly
resolution on arbitration, security and disarmament on the 9th
September, under the presidency of M. Duca (Roumania) (subsequently
replaced by M. Politis [Greece]), and the proceedings opened with a
general discussion, which was continued until the 13th. Lord Parmoor
and Mr. Henderson represented the British Empire.
79. After the method of procedure had been settled, a statement was
made expressing the standpoint of the British Delegation on the
questions of arbitration under the three heads of arbitration, court
decisions and conciliation, and the views then expressed were
maintained at the subsequent meetings. A short {249} reference was
made to the question of sanctions, but any detail was avoided in order
to leave room for free discussion with the members of the French
Delegation. The note of the British Government on the Draft Treaty of
Mutual Assistance was referred to as expressing the final view and not
requiring any further comment.
80. Most of the speakers devoted some time to a statement of the views
of their Governments on the Draft Treaty of Mutual Assistance, against
which the main objections urged were the uncertainty in regard to the
definition of aggression, the too wide discretion and powers conferred
upon the Council and the evils attendant on the system of
"complementary agreements" sanctioned by the Treaty. The first defect
might now be remedied by the extension of the system of arbitration,
which would simplify the definition of aggression. As regards the
"complementary agreements," even those who recognized their harmful
possibilities were compelled to admit that they could not be abolished
or prevented, and that their power for evil might be lessened if they
were controlled and brought within a general scheme of mutual
assistance under the League.
81. All the speakers were in substance agreed that the Covenant itself
afforded the best basis for any scheme of mutual assistance; that it
needed only to be developed and carried to its logical conclusion in
order that it might provide an adequate basis of security.
82. In summing up the debate the President observed that there appeared
to be general agreement on the interdependence of the three problems of
arbitration, security and disarmament, and on the point that a complete
system could be evolved from the Covenant itself. Everyone was
prepared to accept the principle of economic and financial sanctions,
though some difference might exist on the subject of military
sanctions. Little had been said about disarmament, which could only
follow as a consequence of the solution of the twin problems of
arbitration and security.
{250}
83. It was then agreed, on the morning of the 13th September, to
appoint a sub-committee of representatives of twelve Delegations to
formulate concrete proposals.
84. The sub-committee, known as the Fourth Sub-Committee of the Third
Committee, was composed as follows:--
Lord Parmoor or Mr. Henderson (British Empire).
M. Paul-Boncour (France).
M. Schanzer (Italy).
M. Branting (Sweden).
M. Benes (Czechoslovakia).
M. Villegas (Chile).
M. Kalfov (Bulgaria).
M. Poullet (Belgium).
M. Titulesco (Roumania).
Mr. Matsuda (Japan).
M. Lange (Norway).
M. Skrzynski (Poland).
85. The sub-committee met for the first time on the afternoon of the
13th September, under the presidency of Dr. Benes. The first meeting
was occupied by a discussion on procedure. In the first instance, it
was proposed to appoint a drafting committee of three members to draw
up proposals, keeping in close touch with a similar committee to be
appointed by the First Committee, but this idea was subsequently
abandoned, and the President was requested to draw up the outline of a
scheme, to be submitted to the sub-committee, if possible, on the 15th
September. This the President undertook to do, but he was only able to
submit his proposals for the first time on the 16th September. The
delay was due mainly to the necessity of consulting with
representatives of the First Committee and with certain Delegations.
In particular, meetings were held on the 15th September between
representatives of the French and British Delegations who went
carefully through the scheme and reached a preliminary agreement on a
number of points of principle. This agreement greatly facilitated the
eventual completion of the work.
{251}
86. These proposals were in the form of a draft Protocol, of which
articles 1, 2, 3 and 5 concerned the First Committee, and have already
been dealt with in the preceding section of this report. The remaining
articles, as originally proposed, may be summarised as follows:--
87. _Article_ 4.--The Council or the Permanent Court may appoint
International Control Commissions, composed of civilian and military
experts, to ensure that during the course of the arbitral procedure
none of the parties makes preparations for economic or military
mobilisation.
88. _Article_ 6 recommends the establishment of demilitarised zones and
their control, if desired, by the League of Nations.
89. _Article_ 7.--As soon as the declaration of aggression has been
made, the obligations of the signatories in regard to the sanctions of
all kinds in article 16, paragraphs 1 and 2, of the Covenant will
immediately become operative against the aggressor. These obligations
to be interpreted as obliging each of the Members of the League to
co-operate loyally and effectively in support of the Covenant of the
League and in resistance to any act of aggression.
90. In accordance with article 16 of the Covenant the signatories
undertake, individually or collectively, to come to the assistance of
the State attacked or threatened, and to give each other mutual support
by means of facilities and reciprocal exchanges as regards supplies of
raw materials and food-stuffs of every kind, openings of credits,
transports, transit, and for this purpose to ensure the safety of the
land and sea communications of the attacked or threatened State.
91. If both parties to the dispute are declared aggressors according to
the above provisions, the economic sanctions to be applied to both of
them.
92. _Article_ 7A.--The Council of the League of Nations to instruct the
Economic and Financial Committees, Temporary Mixed Commission and
Permanent Advisory Commission to draw up (1) plans of action for
establishing the blockade of {252} the aggressor State, and (2) plans
of economic and financial co-operation between the State attacked and
the different States assisting it.
93. _Article_ 8.--The Council to be entitled to accept individual or
collective undertakings entered into by States, determining in advance
the military forces which they would immediately place at the Council's
disposal in order to carry out the measures decided upon, in accordance
with the preceding articles.
94. When the aggressor has been designated, the signatories may, in
accordance with undertakings previously entered into, place in the
field the whole, or such proportion as they may consider necessary, of
their military forces against the aggressor.
95. _Article_ 8A.--In view of article 10 of the Covenant, the above
sanctions must not include the violation of the political or
territorial independence of the aggressor.
96. _Article_ 9.--The signatories to take part as soon as possible in
an International Conference for the Reduction of Armaments under the
auspices of the League. The Council to draw up the programme for this
Conference.
97. If, within a time limit of (Transcriber's note: blank space in
source) after the coming into force of the Protocol, the Conference has
not met, or the scheme for the reduction of armaments drawn up by it
has not been adopted and carried out, the Council may record the fact,
and each signatory shall regain its freedom of action.
98. If, during the time limit specified above, a dispute arises, the
provisions in the Protocol to be applicable in full.
99. _Supplementary Clause_ (to be inserted in article 9).--The
conditions in which the Council may declare that the scheme of the
International Conference has not been carried out, shall be defined by
the Conference itself.
100. _Article_ 10.--Differences relating to the carrying out or
interpretation of the Protocol to be submitted to the Permanent Court
of International Justice.
101. _Article_ 11.--The Protocol to be open for signature by {253} all
States, to be ratified, and the ratifications to be deposited with the
League. The Protocol to come into force between the signatories
ratifying it, as from the date of ratification.
102. The sub-committee held eight meetings in all, finishing its work
on the 22nd September. The articles were not discussed in their
numerical order, and a discussion of one article was often adjourned
while the examination of another article was begun. As it is not
attempted here to give a full summary of the discussions, it will
perhaps be convenient to take the articles in order and show what
modifications were introduced.
103. _Article_ 4.--Objection was raised to this article, mainly on the
ground that it gave the Council or the Permanent Court too wide powers
of interference, and introduced the idea of a "super-State." After
consultation with other Delegations, the British Delegation produced an
alternative draft which was adopted, and which was substantially
embodied in the eventual Protocol itself (becoming article 7). The
only essential difference between this draft and the eventual text was
that the former provided, in paragraph 2, that the investigations
should be carried out "by the organisation set up by the Conference for
the Reduction of Armaments to ensure respect for the decisions of that
Conference.
104. _Article_ 6.--Words were inserted to the effect that demilitarised
zones were recommended "as a means of avoiding violations of the
present Protocol." They were to be placed under the supervision of the
Council at the request "and at the expense" of one or more of the
conterminous States.
105. _Article_ 7.--There was considerable discussion on the first
paragraph, and some demand for a distinction to be drawn, as in the
Covenant, between economic and financial sanctions on the one hand, and
military sanctions on the other. It was, however, explained that the
proposed definition of the aggressor had produced a clearer situation,
in which there was no reason why the application of sanctions of all
kinds under article 16 of the Covenant should not be justified. It was
pointed out that the {254} wording of this first paragraph was
illogical. The "obligations" could not "become operative against an
aggressor." Accordingly, it was agreed to substitute the words "the
obligations will immediately come into force in order that the
sanctions provided may immediately become operative." The paragraph
was then passed with the above amendment.
106. Exception was taken to the words in the third paragraph "undertake
individually or collectively to come to the assistance." It might
prove difficult to evolve collective plans, and it was agreed, on the
proposal of the British Delegate, to substitute the words "give a joint
and several undertaking to."
107. In the same paragraph the use of the expression "to ensure the
safety of the land and sea communications of the attacked or threatened
State" was questioned in the first place, because it seemed that it
might imply naval or military operations. In reply, it was pointed out
that the words in the same sentence "for this purpose" showed that this
paragraph related solely to economic and financial sanctions. In the
second place the word "ensure" was objected to, on the score that to
undertake to ensure communications might be to undertake an
impossibility. Finally, the words "take measures to preserve the
safety of communications" were substituted. It was further pointed out
that these provisions were to be applied to protect an attacked or
threatened State and that a similar distinction was expressly contained
in the Covenant.
108. _Article_ 7A.--The British Delegation desired a redraft of this
article, taking exception in particular to sub-paragraph (1), in which
the word "blockade" seemed to suggest belligerent naval action. They
at first suggested omitting all words after "Council of the League of
Nations" and substituting "shall, as soon as possible after the
Protocol has been ratified, take steps to ascertain from each of the
signatories what organisation or legislation is necessary to give
effect to the economic and financial sanctions." An alternative
suggestion from another quarter was to substitute the words "putting
into force the economic and {255} financial sanctions against" for the
words "establishing the blockade of" in sub-paragraph (1). It was
agreed to combine both amendments--to adopt the British text above, and
to begin a second paragraph with the words "When in possession of this
information the Council shall draw up, through its competent organs:
(1) plans of action for the application of the economic and financial
sanctions of article 16 of the Covenant against an aggressor State," &c.
109. Later, the British Delegation proposed to redraft the first
paragraph in the form in which it finally appears in the Protocol
(having become article 12), to delete the remainder, and to substitute
"It shall communicate this report to the members of the League and to
the other signatories." The redraft of the first paragraph was
accepted, but it was decided to allow the second paragraph to stand, as
amended above.
110. _Article_ 8.--The British Delegation had objections to raise
against both paragraphs of this article. In the first paragraph they
objected to the words "place at the Council's disposal," and the second
paragraph they regarded as an attempt to revert to what was the
operative principle of the Draft Treaty of Mutual Assistance.
111. They suggested as an alternative text:--
"Having regard to the fact that military sanctions are foreseen in
article 16 of the Covenant, the Council may receive undertakings
from States fixing in advance the military forces which they would
be willing to employ against a Member of the League which was
declared to be an aggressor.
"In view of the right of Members of the League to enter into such
arrangements with the Council, no agreement shall in future be
concluded between States Members of the League, providing for
military action to be taken by them."
112. It became evident that the sub-committee could not be induced to
accept the second paragraph of this alternative text, and it was
accordingly withdrawn. Exception was also taken {256} to the words in
the first paragraph, "against a Member of the League," &c., and it was
agreed to substitute the words, "to ensure the fulfilment of the
obligations in regard to sanctions which result from the Covenant and
the present Protocol."
113. The French Delegation then proposed that the article should read:--
"In view of the contingent military, naval and air sanctions
provided for in article 16 of the Covenant, and article 7 of the
present Protocol, the Council shall be entitled to receive
undertakings entered into by States determining in advance the
military, naval and air forces which they would bring into
action immediately to ensure the fulfilment of the obligations
in regard to sanctions which result from the Covenant and the
present Protocol.
"When the aggressor is designated, the signatory States may,
moreover, place in the field, in accordance with agreements
previously entered into, the whole or such part of their
military, naval and air forces as they may consider necessary
for the assistance of a State which shall have been the victim
of aggression.
"The obligations of the second paragraph shall be duly
registered and published by the League of Nations, and shall
remain open for adherence by any State Member of the League
which so desires."
114. It was the right of States, as the matter then stood, to enter
into special agreements with one another for determining in advance the
military, naval and air forces which they would bring to the assistance
of one another under the conditions indicated. Under the Protocol,
these special agreements would only come into force when the Council
had decided which State is the aggressor: they would simply provide
means for applying rapidly the sanctions prescribed in the Covenant and
the Protocol.
115. Before, however, agreeing to this text a statement was made on
behalf of the British Delegation, expressing regret that the
sub-committee had not seen its way to make the Protocol an instrument
whereby the League would only act as a whole. It was, however,
recognised that the last paragraph introduced {257} an improvement, as,
if separate agreements must exist, it would be better that they should
be registered with the League. "But that does not alter the fact that
you are making provision on the face of a new document for that which
has been turned down in connection with the Draft Treaty of Mutual
Assistance." Further opposition to the draft article was not pressed,
but the British Delegation made known their desire that words should be
recorded expressing regret that the League was not to act as a whole,
and to set its face "like flint against anything like the old balance
of power by allowing these regional pacts to go on under this new
instrument." The above text was then adopted.
116. _Article_ 8A.--The British Delegation proposed that the article
should read: "Shall not affect the territorial integrity or political
independence of the aggressor State." This was agreed to, and it was
also decided to prefix a paragraph relating to the costs of military,
naval or air operations, similar to article 10 of the Draft Treaty of
Mutual Assistance.
117. _Article_ 9.--Objection was raised by the British Delegation to
the last paragraph of article 9, and they moved that the following be
substituted:--
"The provisions of the present Protocol in regard to arbitration
and sanctions shall come into force when the scheme for the
reduction of armaments, drawn up by the International Conference,
has been effectively carried out in accordance with the
conditions fixed by the Conference itself."
118. The French Delegation maintained strongly that the Protocol must
be brought into operation before the International Conference could
meet. The British Delegation offered a compromise with the suggestion
that their Government might sign the Protocol, and ask Parliament to
approve it before the Conference met. But preparatory arrangements for
the Conference should go on concurrently. Directly agreement was
reached by the Conference, ratifications could 'be deposited. As this
failed to meet the views of the French Delegation, the British {258}
Delegation made a final proposal whereby endeavours should be made to
secure ratification and deposit of ratifications before the Conference
met, provided the Protocol itself contained a provision to the effect
that it should only become operative when the International Conference
reached a conclusion. The French Delegation indicated their
willingness in principle to accept this, but wished to consider an
actual text.
119. At the next meeting the Chairman submitted the following version:--
"The undersigned Members of the League of Nations undertake to
participate in an International Conference for the Reduction of
Armaments which shall be convened by the Council of the League
and shall meet at Geneva on Monday, the 15th June, 1925. States
not Members of the League of Nations shall be invited to this
Conference.
"The ratifications of the present Protocol shall be deposited
with the Secretariat of the League of Nations at the latest by
the 1st May, 1925. If at least fifteen Members of the League,
of which four are permanently represented on the Council, have
not deposited their ratification by the 1st, May 1925, the
Secretary-General of the League shall cancel the invitations.
"The entry into force of the present Protocol shall be
suspended until a plan for the reduction of armaments has been
adopted by the Conference.
"With a view to the summoning of the latter, the Council,
taking into account the undertakings contained in articles 7
and 8 of the present Protocol, will prepare a general programme
for the reduction of armaments which will be placed at the
disposal of the Conference.
"If, within a period of (Transcriber's note: blank space in source)
after the adoption of the plan for the reduction of armaments,
that plan has not been carried out, the Council shall make a
declaration to that effect; this declaration shall under the
present Protocol be null and void.
"The grounds on which the Council may declare that the plan drawn
up by the International Conference for the Reduction of Armaments
has not been carried out, and that in consequence the present
{259}
rendered null and void, shall be laid down by the Conference
itself.
"A signatory State which, after the expiration of the period
fixed above, fails to comply with the plan adopted by the
Conference, shall not be admitted to benefit by the application
of sanctions provided in the present Protocol."
120. The sub-committee adopted a proposal to add to the third paragraph
"and communicated to Governments two months previously." In view of
representations made by the Japanese Delegation, this was subsequently
altered to "and communicated to Governments at the earliest possible
date, and at the latest three months before the Conference meets."
121. The Swedish Delegation proposed that a clause should be added to
the effect that "the present Protocol in no way effects obligations
arising out of the Covenant." It was agreed that a clause to this
effect could be either added or inserted as a separate article. The
latter alternative was eventually adopted (see article 19 of the final
Protocol).
122. After some discussion, the number of ratifications required in
paragraph 2 of this article was finally fixed as now provided in the
Protocol (see paragraph 4 of article 21 of the final Protocol).
(N. B.--The Joint Drafting Committee of the First and Third Committees
made a final revise of the whole text, with a view to checking the
wording of the various articles, their logical arrangement, &c. In the
course of this work they removed paragraphs 3, 5, 6 and 7 of this
article and incorporated them in the "ratification" article of the
final Protocol--No. 21.)
123. _Article_ 10.--The British Delegation proposed the suppression of
the words "carrying out." It was decided to consult the First
Committee on this point. (The words are omitted in the final Protocol.)
124. _Article_ 11.--In view of the new text of article 9, it was
decided to omit the second paragraph of this article.
125. This concluded the work of the sub-committee, and {260} the text
of the above articles of the Protocol were submitted to the Third
Committee on the 22nd September.
Dr. Benes, as chairman and _rapporteur_ of the sub-committee, made a
general report on the sub-committee's work, and it was then agreed to
discuss the articles seriatim.
126. On _Article_ 4 a debate ensued on an objection raised by the
Italian Delegation to the proposal that investigations should be
carried out by the organisation to be set up by the International
Conference. In the first place, they disliked the idea of a permanent
organ of investigation--they considered that, if an investigation were
necessary, this should be carried out by a special body appointed for
the purpose if and when the occasion arose. In the second place, they
suggested that it would be improper to anticipate, in the Protocol, any
decision that the International Conference might take. The British
Delegation explained that this proposal had been inserted in their
draft merely as a matter of convenience: thinking that it would be
necessary for the Conference to appoint some body to ensure that the
decisions of the Conference were carried out, it had seemed to them
that it would be only duplicating labour for any other body to be set
up by the Council to carry out these special investigations. The
Italian Delegation finally suggested that the text should run, "such
enquiries and investigations shall be carried out with the utmost
possible despatch, and the signatory States undertake to afford every
facility for carrying them out." This was accepted, with the
consequential amendment to the fourth paragraph, which should now
begin: "If, as a result of these enquiries and investigations, any
infraction," &c. The article thus adopted became article 7 of the
final Protocol.
127. _Articles_ 5 _and_ 6 were adopted without modification, becoming
articles 10 and 9 respectively of the final Protocol.
128. _Article_ 7.--Owing to a change introduced by the First Committee
in the text of article 5, in consequence of which it was no longer
incumbent on the Council to make a declaration of aggression, it became
necessary to alter the wording of the beginning of article 7. It was
decided that this should run, "As {261} soon as the Council has called
upon the signatory States to apply sanctions against the aggressor
State, in accordance with article 6, the obligations," &c.
129. In paragraph 2 the words "signatory States" were substituted for
"Members of the League."
130. The article as a whole came in for some criticism, mainly from the
Netherlands and Scandinavian Delegations. Certain remarks made by Dr.
Benes in introducing the text to the Third Committee had caused
misgivings to those Delegations, who wished to be assured that the
obligations in this article did not go beyond those of article 16 of
the Covenant. They observed, as had members of the sub-committee, that
the distinction drawn in the Covenant between economic and financial
sanctions on the one hand, and military, naval and aerial sanctions on
the other, had disappeared from the present text, and they sought a
clear declaration that no fresh obligations were incurred in regard to
the latter category, and that each Member of the League retained the
right to decide its own course of action. In the course of his reply
Dr. Benes said, "the real application of the sanctions will always be
within the province of the Government themselves, and true co-operation
will always take place by direct contract between the Governments."
The Danish Delegation were not entirely satisfied, and moved to alter
the second paragraph so as to make it read, "co-operate loyally and
effectively in the carrying out of the obligations provided for in
article 16 of the Covenant." After consultation with the _rapporteur_,
they abandoned this amendment, and declared themselves satisfied with
the addition to paragraph 2 of the words, "in the degree which its
geographical position and its particular situation as regards armaments
allow." As thus amended, the article was adopted, and became article
11 of the final Protocol.
131. _Article_ 7A was adopted without amendment, becoming article 12 of
the final Protocol.
132. _Article_ 8.--The change, referred to above, in the text of
article 5, rendered necessary an alteration in the wording of the
second paragraph of this article, which it was agreed should {262}
begin: "Furthermore, as soon as the Council has called upon the
signatory States to apply sanctions, as provided," &c.
133. In the same paragraph it was decided to omit the words, "the whole
or such part of," and make it read, "bring to the assistance of a
particular State, which is the victim of aggression, their military,
naval and air forces." With these modifications, the article was
adopted, and became article 13 of the final Protocol.
134. _Article_ 8A was adopted, and figures as article 15 in the final
Protocol. It was suggested that an addition should be made to this
article to the effect that "the Council shall alone be competent to
declare that the application of sanctions shall cease and normal
conditions be re-established." The Committee decided that this should
be inserted as a separate article, and it appears in the final Protocol
as article 14.
135. _Articles_ 9 _and_ 10 were adopted without modification, article 9
being embodied, as explained, in articles 17 and 21 of the final
Protocol, and article 10 becoming article 20.
136. The text of an additional article (which became article 19 of the
final Protocol) was also approved.
After the work of the First and Third Committees had been concluded,
the reports of these Committees were submitted as a whole to the
Assembly. The Assembly unanimously, with the assent of every
Delegation represented at that time in the Assembly, approved the
reports so presented them, and passed the resolutions, the text of
which has already been published.[3]
We are,
Sir,
Your obedient servants,
ARTHUR HENDERSON.
PARMOOR.
GILBERT MURRAY.
CECIL J. B. HURST.
The Right. Hon.
J. RAMSAY MACDONALD, M. P.,
&c. &c. &c.
[1] Miscellaneous No. 13 (1924), Cmd. 2200.
[2] See Annex C, p. 156.
[3] See Annex D, p. 210.
{263}
ANNEX F.
PROPOSALS OF THE AMERICAN GROUP.[1]
DECLARATION OUTLAWING AGGRESSIVE WAR.
CHAPTER I.
OUTLAWRY OF AGGRESSIVE WAR.
ARTICLE 1.--The High Contracting Parties solemnly declare that
aggressive war is an international crime. They severally undertake not
to be guilty of its commission.
ARTICLE 2.--A State engaging in war for other than purposes of defense
commits the international crime described in Article 1.
ARTICLE 3.--The Permanent Court of International Justice shall have
jurisdiction, on the complaint of any signatory, to make a judgment to
the effect that the international crime described in Article 1 has or
has not in any given case been committed.
CHAPTER II.
ACTS OF AGGRESSION.
ARTICLE 4.--The High Contracting Parties solemnly declare that acts of
aggression, even when not amounting to a state of war, and preparations
for such acts of aggression, are hereafter to be deemed forbidden by
international law.
{264}
ARTICLE 5.--In the absence of a state of war, measures of force by
land, by sea or in the air taken by one State against another and not
taken for the purpose of defense against aggression or for the
protection of human life shall be deemed to be acts of aggression.
General or partial mobilisation may be deemed to be preparation for an
act of aggression.
Any signatory which claims that another signatory has violated any of
the terms of this Declaration shall submit its case to the Permanent
Court of International Justice.
A signatory refusing to accept the jurisdiction of the Court in any
such case shall be deemed an aggressor within the terms of this
Declaration.
Failure to accept the jurisdiction of the Court within four days after
notification of submission of a claim of violation of this Declaration
shall be deemed a refusal to accept the jurisdiction.
ARTICLE 6.--The Court shall also have jurisdiction on the complaint of
any signatory to make a judgment to the effect that there has or has
not in any given case been committed a violation of international law
within the terms of Article 4.
ARTICLE 7.--The Court shall, in any case, have the power to indicate,
if it considers that circumstances so require, any provisional measures
which ought to be taken to reserve the respective rights of either
party.
Pending the final decision, notice of the measures suggested shall
forthwith be given to the parties.
CHAPTER III.
SANCTIONS.
ARTICLE 8.--In the event of any H.C.P. having been adjudged an
aggressor pursuant to this Declaration, all commercial, trade,
financial and property interests of the aggressor shall cease to be
entitled, either in the territory of the other signatories or on {265}
the high seas, to any privileges, protection, rights or immunities
accorded by either international law, national law or treaty.
Any H.C.P. may in such case take such steps towards the severence of
trade, financial, commercial and personal intercourse with the
aggressor and its nationals as it may deem proper and the H.C.P. may
also consult together in this regard.
The period during which any such economic sanction may be continued
shall be fixed at any time by the Court at the request of any signatory.
In the matter of measures of force to be taken, each signatory shall
consult its own interests and obligations.
ARTICLE 9.--If any H.C.P. shall be adjudged an aggressor by the
Permanent Court of International Justice, such Power shall be liable
for all damage to all other H.C.P. resulting from its aggression.
CHAPTER IV.
DECREES OF THE PERMANENT COURT.
ARTICLE 10.--The H.C.P. agree to accept the judgment of the Permanent
Court of International Justice as to the fulfilment of violation of the
contracts of this Declaration.
Any question arising under this Declaration is _ipso facto_ within the
jurisdiction of the Court.
ARTICLE 11.--If a dispute arising under this Declaration shall be
submitted to the Permanent Court of International Justice, it is for
the Court to decide as to its jurisdiction and also whether or not its
decree has been complied with.
ARTICLE 12.--The High Contracting Parties, recognising that excessive
armaments constitute a menace of war, agree to participate in the
Permanent Advisory Conference on Disarmament decided upon by the Fifth
Assembly of the League of Nations.
ARTICLE 13.--The present Declaration shall be ratified. The
ratifications shall be deposited as soon as possible with the Secretary
General of the League of Nations.
{266}
Any signatory to this Declaration desiring to withdraw therefrom may
give notice thereof to the Secretary-General of the League of Nations.
Such notice shall take effect one year from the date of deposit thereof
and only as to the signatory so withdrawing.
Notice of each ratification and of each withdrawal shall be
communicated by the Secretary-General of the League of Nations to each
signatory hereto.
RESOLUTION CONCERNING THE DECLARATION OUTLAWING AGGRESSIVE WAR.
1. The Assembly unanimously declares its approval of the Declaration
Outlawing Aggressive War which was prepared by the Third Committee of
the Assembly and submitted to the Assembly for its approval.
2. The said Declaration shall be submitted within the shortest possible
time to the Members of the League of Nations for adoption in the form
of a protocol duly ratified and declaring their recognition of this
Declaration. It shall be the duty of the Council to submit the
Declaration to the Members.
The said protocol shall likewise remain open for signature by States
not Members of the League of Nations.
3. As soon as this protocol has been ratified by the majority of the
Members of the League the said Declaration shall go into force.
DISARMAMENT RESOLUTION "A."
1. The Assembly, having considered the Report of the Temporary Mixed
Commission and having also considered the replies of the various
Governments commenting on the proposed Treaty of Mutual Assistance,
reaffirms the principles set forth in Resolution 14 of the Third
Assembly,
2. Furthermore, the Assembly is of the opinion that all the {267}
Nations of the world, whether or not Members of the League of Nations,
should agree
a. to limit or reduce their armaments to the basis necessary
for the maintenance of peace and national security.
b. to study the ways and means for future reduction of
armaments either as between all Nations or as between any
two of them.
3. The Assembly is further of the opinion that reciprocal agreements
between two or more neighbouring countries for the establishment of
demilitarised zones would facilitate the security necessary to
progressive disarmament.
4. In order to facilitate the reduction and limitation of armaments,
the Assembly requests the Council to call a Permanent Advisory
Conference upon disarmament which shall meet periodically at intervals
of not less than once every three years.
Invitations to participate in this Permanent Conference shall be sent
to all Nations whether Members of the League or not.
The said Conference should from time to time consider the further
codifying of the principles of international law particularly in
relation to acts of aggression and preparations for such acts.
In this regard the Conference should take into account matters bearing
upon the security of the Powers represented and the steps taken toward
disarmament.
The recommendations of the Conference shall be submitted to the Powers
for their adoption, and shall also be transmitted to the Permanent
Court of International Justice.
The said Conference should publish periodical reports concerning the
actual conditions of the armaments of the Powers.
The said Conference should advise the Powers concerning measures to be
taken to ensure the carrying out of the principles of the present
Resolution and it may prepare draft treaties for the establishment of
demilitarised zones and for the further promotion of disarmament and
peace.
{268}
5. The said Conference should appoint a Permanent Technical Committee.
6. The said Conference or its Permanent Technical Committee should give
advice on technical questions to the Permanent Court of International
Justice at the request of said Court.
7. The expenses of the said Conference and of its agencies should be
borne by the Powers in the proportion of their respective budgets for
defense.
DISARMAMENT RESOLUTION "B."
1. Considering that by the terms of Article 8 of the Covenant of the
League of Nations
"The Members of the League undertake to interchange full
and frank information as to the scale of their armaments,
their military, naval and air programmes and the condition
of such of their industries as are adaptable to warlike
purposes,"
the Assembly, in order to facilitate the carrying out of the said
engagement, requests the Council to set up a Commission charged with
the duty of making the necessary official examinations and reports.
2. The said Commission shall proceed under such regulations as the
Council and the Assembly shall from time to time approve.
3. Subject to such regulations the members of the Commission shall be
entitled, when they deem it desirable, to proceed to any point within
the territory of any Member of the League or to send sub-commissions or
to authorize one or more of their members so to proceed on behalf of
the Commission.
4. The Members of the League will give all necessary facilities to the
said Commission in the performance of its duties.
5. All reports made by the said Commission shall be communicated to the
Members of the League.
{269}
DISARMAMENT RESOLUTION "C."
The Assembly, taking account of the provisions of the Declaration
Outlawing Aggressive War, is of opinion
1. Powers which have ratified the said Declaration may, subject to the
following provisions, conclude, either as between two of them or as
between a larger number, agreements complementary to the said
Declaration, exclusively for the purpose of their mutual defense and
intended solely to facilitate the carrying out of the measures
prescribed in said Declaration, determining in advance the assistance
which they would give to each other in the event of any act of
aggression.
Such agreements may, if the H.C.P. interested so desire, be negotiated
and concluded under the auspices of the Council.
2. Complementary agreements as defined in the preceding paragraph,
shall, before being registered, be examined by the Council with a view
to deciding whether they are in accordance with the principles of said
Declaration and of the Covenant.
In particular, the Council shall consider if the cases of aggression
contemplated in these agreements are of a nature to give rise to an
obligation to give assistance on the part of the other H.C.P.
The Council may, if necessary, suggest changes in the texts of the
agreements submitted to it.
When recognised, the agreements shall be registered in conformity with
Article 16 of the Covenant. They shall be regarded as complementary to
the said Declaration and shall in no way limit the general obligations
of the H.C.P. nor the sanctions contemplated against an aggressor under
the terms of said Declaration.
They will be open to any other H.C.P., Party to said Declaration with
the consent of the Signatory States.
3. In all cases of aggression, for which provision is made in the
agreement constituting a defensive group, the H.C.P. which are members
of such group may undertake to put into operation {270} automatically
the plan of assistance agreed upon between them; and in all other cases
of aggression or menace or danger of aggression, directly aimed at
them, they will consult each other before taking action, and will
inform the Council of the measures which they are contemplating.
4. The Council, taking into account the reports and opinions of the
Commission set up under Resolution B of this Assembly, shall at any
time when requested, consider summarily whether (a) the armaments of
any State are in excess of those fixed under the provisions of any
agreement relating to reduction or limitation or armaments; or (b) the
military or other preparations of any State are of such a nature as to
cause apprehension of aggression or an eventual outbreak of hostilities.
5. If the Council shall upon such request be of the opinion that there
is reasonable ground for thinking that a menace of aggression has
arisen, the parties to the defensive agreements hereinbefore mentioned
may put into immediate execution the plan of assistance which they have
agreed upon.
6. If the Council shall, upon such request, not be of the opinion that
a menace of aggression has arisen, a public report to the effect shall
be made and in such case no State shall be under any obligation to put
into execution any plan of assistance to which it is a party; but any
Member of the League, believing itself to be threatened with a menace
of aggression, notwithstanding the fact that the Council has not been
of such opinion, may forthwith notify the Council to that effect, and
such Member shall thereupon have full liberty of action in military or
other preparations for defense, subject, however, to the limitations as
to armament which are imposed by any treaty now in force.
[1] In their earlier form, as a Draft Treaty of Disarmament and
Security, these proposals were circulated to the Members of the Council
of the League in June, 1924. For the text, see World Peace Foundation
Pamphlets, Vol. VII, No. 8. In the form here printed, the so-called
"American Plan" was given out at Geneva on August 29, 1924, with the
following note by General Bliss, Professor Shotwell and myself:
"It has been suggested that the proposals of the Draft Treaty of
Disarmament and Security prepared by the American Group, of which we
are members, might be drawn up in some form other than that of one
Treaty.
"In order to facilitate the examination of this suggestion, we have
prepared the four draft papers which follow. These papers are a Draft
Declaration Outlawing Aggressive War (with a Draft Assembly Resolution
regarding the same) and three Draft Resolutions of the Assembly
regarding Disarmament.
"Aside from the necessary drafting changes required by the change of
form, the text of these papers is substantially, and except in a few
instances, literally the same as that of the Draft Treaty of
Disarmament and Security above mentioned."
{271}
ANNEX G.
THE COVENANT
OF THE LEAGUE OF NATIONS.
INCORPORATING THE PROVISIONS OF THE
PROTOCOL OF GENEVA.[1]
[Sidenote: Two clauses added from the Preamble to the Protocol.]
Recognising the solidarity of the members of the international
community, and
Asserting that a war of aggression constitutes a violation of this
solidarity and an international crime,
THE HIGH CONTRACTING PARTIES,
In order to promote international co-operation and to achieve
international peace and security
by the acceptance of obligations not to resort to war,
by the prescription of open, just and honourable relations
between nations,
by the firm establishment of the understandings of international
law as the actual rule of conduct among Governments, and
by the maintenance of justice and a scrupulous respect for all
treaty obligations in the dealings of organised peoples with
one another,
Agree to this Covenant of the League of Nations.
Articles 1 to 11, Inclusive.
Unchanged.
Article 11a.
[Sidenote: Article 2 of the Protocol with verbal changes.]
The Members of the League agree in no case to resort to war either with
one another or against a State which, if the occasion arises, accepts
all the obligations of the Covenant, except in case of resistance to
acts of aggression or when acting in agreement with the Council or the
Assembly in accordance with the provisions of the Covenant.
{272}
Article 12.
[Sidenote: Phrase agreeing not to resort to war for three months,
omitted as unnecessary.]
The Members of the League agree that if there should arise between them
any dispute likely to lead to a rupture, they will submit the matter
either to arbitration or judicial settlement or to inquiry by the
Council.
In any case under this Article the award of the arbitrators or the
judicial decision shall be made within a reasonable time, and the
report of the Council shall be made within six months after the
submission of the dispute.
Article 13.
The Members of the League agree that, whenever any dispute shall arise
between them which they recognise to be suitable for submission to
arbitration or judicial settlement, and which cannot be satisfactorily
settled by diplomacy, they will submit the whole subject-matter to
arbitration or judicial settlement.
Disputes as to the interpretation of a treaty, as to any question of
international law, as to the existence of any fact which, if
established, would constitute a breach of any international obligation,
or as to the extent and nature of the reparation to be made for any
such breach, are declared to be among those which are generally
suitable for submission to arbitration or judicial settlement.
[Sidenote: A verbal change in the third paragraph.]
For the consideration of any such dispute, the court to which the case
is referred shall be the Permanent Court of International Justice, or
any tribunal agreed on by the parties to the dispute or stipulated in
any convention existing between them.
The Members of the League agree that they will carry out in full good
faith any award or decision that may be rendered, and that they will
not resort to war against a Member of the League which complies
therewith. In the event of any failure to carry out such an award or
decision, the Council shall propose what steps should be taken to give
effect thereto.
Article 14.
[Sidenote: Article 14 of the Covenant, verbally changed.]
The Permanent Court of International Justice shall be competent to hear
and determine any dispute of an international character which the
parties thereto submit to it. The Court may also give an advisory
opinion upon any dispute or question referred to it by the Council or
by the Assembly.
[Sidenote: Article 3 of the Protocol, with some words added.]
The Members of the League undertake to recognize as compulsory, _ipso
facto_ and without special agreement, the jurisdiction of the Permanent
Court of International Justice in the cases covered by paragraph 2 of
Article 36 of the Statute of the Court, but without prejudice to the
right of any Member, when acceding to the special protocol provided for
in the said Article and opened for signature on December 16th, 1920, to
make reservations compatible with the said clause.
{273}
Accession to this special protocol, opened for signature on December
16th, 1920, must be given within a month after the coming into force
hereof, and in the case of Members of the League hereafter admitted,
within a month after such admission.
[Sidenote: Article 20 of the Protocol.]
Any dispute as to the interpretation of the Covenant shall be submitted
to the Permanent Court of International Justice.
Article 15.
[Sidenote: The first three paragraphs of Article 15 of the Covenant,
unchanged.]
If there should arise between Members of the League any dispute likely
to lead to a rupture which is not submitted to arbitration or judicial
settlement in accordance with Article 13, the Members of the League
agree that they will submit the matter to the Council. Any party to
the dispute may effect such submission by giving notice of the
existence of the dispute to the Secretary-General, who will make all
necessary arrangements for a full investigation and consideration
thereof.
For this purpose the parties to the dispute will communicate to the
Secretary-General, as promptly as possible, statements of their case
with all the relevant facts and papers, and the Council may forthwith
direct the publication thereof.
The Council shall endeavour to effect a settlement of the dispute, and,
if such efforts are successful, a statement shall be made public giving
such facts and explanations regarding the dispute and the terms of
settlement thereof as the Council may deem appropriate.
[Sidenote: Numbers 1 and 2 of Article 4 of the Protocol, very slightly
changed.]
If the dispute is not thus settled, the Council shall endeavour to
persuade the parties to submit the dispute to judicial settlement or
arbitration.
If the parties cannot agree to do so, there shall, at the request of at
least one of the parties, be constituted a Committee of Arbitrators.
The Committee shall so far as possible be constituted by agreement
between the parties.
If within the period fixed by the Council the parties have failed to
agree, in whole or in part, upon the number, the names and the powers
of the arbitrators and upon the procedure, the Council shall settle the
points remaining in suspense. The Council shall with the utmost
possible dispatch select in consultation with the parties the
arbitrators and their President from among persons who by their
nationality, their personal character and their experience, appear to
furnish the highest guarantees of competence and impartiality.
After the claims of the parties have been formulated, the Committee of
Arbitrators, on the request of any party, shall through the medium of
the Council, request an advisory opinion upon any points of law in
dispute from the Permanent Court of International Justice, which in
such case shall meet with the utmost possible dispatch.
{274}
[Sidenote: 3 of Article 4 of the Protocol, and the fourth, fifth and
sixth paragraphs of Article 15 of the Covenant]
If none of the parties asks for arbitration, the Council shall take the
dispute under consideration and, either unanimously or by a majority
vote, shall make and publish a report containing a statement of the
facts of the dispute and the recommendations which are deemed just and
proper in regard thereto.
Any Member of the League represented on the Council may make public a
statement of the facts of the dispute and of its conclusions regarding
the same.
If a report by the Council is unanimously agreed to by the Members
thereof, other than the Representatives of any of the parties to the
dispute, the Members of the League agree to comply with the
recommendations of the report.
[Sidenote: 5 of Article 4 of the Protocol, with verbal changes. Eighth
paragraph of Article 15 of the Covenant.]
In no case may a solution, in accordance with a unanimous
recommendation of the Council accepted by one of the parties concerned,
be again called in question.
If the dispute between the parties is claimed by one of them, and is
found by the Council to arise out of a matter which by international
law is solely within the domestic jurisdiction of that party, the
Council shall so report and shall make no recommendation as to its
settlement.
[Sidenote: Seventh paragraph of Article 15 of the Covenant, as modified
by 4 of Article 4 of the Protocol.]
If the Council fails to reach a report which is unanimously agreed to
by the Members thereof, other than the Representatives of any of the
parties to the dispute, it shall submit the dispute to arbitration.
The Council shall itself determine the composition, the powers and the
procedure of the Committee of Arbitrators and, in the choice of the
arbitrators, shall bear in mind the guarantees of competence and
impartiality referred to above.
[Sidenote: 6 of Article 4 of the Protocol, omitting clauses now
unnecessary.]
The Members of the League undertake that they will carry out in full
good faith any judicial sentence or arbitral award that may be rendered
and that they will comply, as provided in paragraph ten hereof, with
the solutions recommended by the Council. In the event of a Member of
the League failing to carry out the above undertakings, the Council
shall exert all its influence to secure compliance therewith. If the
Council fails therein, it shall propose what steps should be taken to
give effect thereto.
[Sidenote: Paragraphs nine and ten of Article 15 of the Covenant, and
Article 6 of the Protocol.]
The Council may in any case under this Article refer the dispute to the
Assembly. The dispute shall be so referred at the request of either
party to the dispute, provided that such request be made within
fourteen days after the submission of the dispute to the Council.
In any case referred to the Assembly, all the provisions of this
Article and of Article 12 relating to the action and powers of the
Council shall apply to the action and powers of the Assembly, provided
that a report made by the Assembly, if concurred in by the
Representatives of those Members of the League represented on the
Council and of a majority of the other Members of the League, exclusive
in each case of the Representatives of the parties to the {275}
dispute, shall have the same force as a report by the Council concurred
in by all the Members thereof, other than the Representatives of any of
the parties to the dispute; and provided further that in any case
referred to the Assembly, the powers of the Council under paragraphs
five, six, seven and fourteen hereof shall continue.
[Sidenote: 7 of Article 4 of the Protocol.]
The provisions of this article do not apply to the settlement of
disputes which arise as the result of measures of war taken by one or
more Members of the League in agreement with the Council or the
Assembly.
Article 15a.
[Sidenote: From Article 5 of the Protocol.]
If in the course of an arbitration, such as is contemplated in Article
15, one of the parties claims that the dispute, or part thereof, arises
out of a matter which by international law is solely within the
domestic jurisdiction of that party, the arbitrators shall on this
point take the advice of the Permanent Court of International Justice
through the medium of the Council. The opinion of the Court shall be
binding upon the arbitrators, who, if the opinion is affirmative, shall
confine themselves to so declaring in their award.
If the question is held by the Court or by the Council to be a matter
solely within the domestic jurisdiction of the State, this decision
shall not prevent consideration of the situation by the Council or by
the Assembly under Article 11.
Article 15b.
[Sidenote: Articles 8 and 7 of the Protocol, slightly changed.]
The Members of the League undertake to abstain from any act which might
constitute a threat of aggression against another State.
If a Member of the League is of opinion that another State is making
preparations for war, it shall have the right to bring the matter to
the notice of the Council.
In the event of a dispute arising between two or more Members of the
League, they agree that they will not, either before the dispute is
submitted to proceedings for pacific settlement or during such
proceedings, make any increase of their armaments or effectives which
might modify the position established by any agreement in force, nor
will they take any measure of military, naval, air, industrial or
economic mobilisation, nor, in general, any action of a nature likely
to extend the dispute or render it more acute.
It shall be the duty of the Council, in accordance with the provisions
of Article 11, to take under consideration any complaint as to
infraction of the above undertakings which is made to it by one or more
of the parties to the dispute. Should the Council be of opinion that
the complaint requires investigation, it shall, if it deems it
expedient, arrange for inquiries and investigations in one or more of
the countries concerned. Such inquiries and investigations shall be
carried out with the utmost possible dispatch and the Members of the
League undertake to afford every facility for carrying them out.
{276}
The sole object of measures taken by the Council as above provided is
to facilitate the pacific settlement of disputes and they shall in no
way prejudge the actual settlement.
If the result of such inquiries and investigations is to establish an
infraction of the above undertakings, it shall be the duty of the
Council to summon the Member or Members of the League guilty of the
infraction to put an end thereto. Should any Member of the League in
question fail to comply with such summons, the Council shall declare it
to be guilty of a violation of the Covenant, and shall recommend
measures to be taken with a view to end as soon as possible a situation
of a nature to threaten the peace of the world.
For the purposes of this Article decisions of the Council may be taken
by a two-thirds majority.
Article 15c.
[Sidenote: Article 9 of the Protocol, slightly changed.]
The existence of demilitarised zones being calculated to prevent
aggression and to facilitate a definite finding of the nature provided
for in Article 15d, the establishment of such zones between States
mutually consenting thereto is to recommend as a means of preserving
peace.
The demilitarised zones already existing under the terms of certain
treaties or conventions, or which may be established in future between
States mutually consenting thereto, may at the request and at the
expense of one or more of the conterminous States, be placed under a
temporary or permanent system of supervision to be organised by the
Council.
Article 15d.
[Sidenote: Article 10 of the Protocol, with verbal changes.]
Any Member of the League which resorts to war in violation of the
undertakings contained in the Covenant is an aggressor. Violation of
the rules laid down for a demilitarised zone shall be held equivalent
to resort to war.
In the event of hostilities having broken out, any Member of the League
shall be presumed to be an aggressor (unless a decision of the Council,
which must be taken unanimously, shall otherwise declare) which
(a) has refused to submit the dispute to the procedure of pacific
settlement provided by the Covenant, or
(b) has refused to comply with a judicial sentence or arbitral award or
with a unanimous recommendation of the Council, or
(c) has disregarded a unanimous report of the Council, a judicial
sentence or an arbitral award recognizing that the dispute between it
and the other belligerent arises out of a matter which by international
law is solely within the domestic jurisdiction of the latter State, and
has not previously submitted the question to the Council or the
Assembly, in accordance with Article 11, or
(d) has violated provisional measures enjoined by the Council {277} for
the period while the proceedings are in progress as contemplated by
Article 15b.
Apart from the cases dealt with in sub-heads a, b, c and d of this
Article, if the Council does not at once, by unanimous vote, succeed in
determining the aggressor, it shall be bound to enjoin upon the
belligerents an armistice, and shall fix the terms, acting if need be,
by a two-thirds majority and shall supervise its execution.
Any belligerent which refuses to accept the armistice or violates its
terms shall be deemed an aggressor.
The Council shall call upon the Members of the League to apply
forthwith against the aggressor the sanctions provided by the Covenant,
and any Member of the League thus called upon shall thereupon be
entitled to exercise the rights of a belligerent.
[Sidenote: Article 14 of the Protocol.]
The Council shall alone be competent to declare that the application of
sanctions shall cease and normal conditions be reestablished.
Article 16.
[Sidenote: This combines Article 16 of the Covenant and Article 11 of
the Protocol. It omits much of the pending amendments to Article 16 of
the Covenant as superfluous.]
Should any Member of the League resort to war, in disregard of its
covenants, it shall _ipso facto_ be deemed to have committed an act of
war against all other Members of the League, which hereby undertake
immediately to subject it to the severance of all trade or financial
relations and to prohibit all intercourse, at least between persons
resident within their territories and persons resident within the
territory of the covenant-breaking State, and, if they deem it
expedient, also between their nationals and the nationals of the
covenant-breaking State, and to prevent all financial, commercial or
personal intercourse at least between persons resident within the
territory of that State and persons resident within the territory of
every other State, and, if they deem it expedient, also between the
nationals of that State and the nationals of every other State.
It shall be the duty of the Council in such case to recommend to the
several Governments concerned what effective military, naval or air
force the Members of the League shall severally contribute to the armed
forces to be used to protect the Covenants of the League.
As soon as the Council has called upon the Members of the League to
apply sanctions, as provided in Article 15d, the obligations of the
Members of the League in regard to the sanctions mentioned in
paragraphs one and two of this Article will immediately become
operative in order that such sanctions may forthwith be employed
against the aggressor.
Those obligations shall be interpreted as obliging each Member of the
League to co-operate loyally and effectively in support of the
Covenant, and in resistance to any act of aggression, in the degree
which its geographical position and its particular situation as regards
armaments allow.
The Members of the League agree, further, that they will mutually
support one another in the financial and economic measures {278} which
are taken under this Article, in order to minimise the loss and
inconvenience resulting from the above measures, and that they will
mutually support one another in resisting any special measures aimed at
one of their number by the covenant-breaking State, and that they will
take the necessary steps to afford passage through their territory to
the forces of any of the Members of the League which are co-operating
to protect the covenants of the League.
The Members of the League jointly and severally undertake to come to
the assistance of the State attacked or threatened, and to give each
other mutual support by means of facilities and reciprocal exchanges as
regards the provision of raw materials and supplies of every kind,
openings of credits, transport and transit, and for this purpose to
take all measures in their power to preserve the safety of
communications by land and by sea of the attacked or threatened State.
If both parties to the dispute when so invited refuse to accept of
Article 15d, the economic and financial sanctions shall be applied to
both of them.
Any Member of the League which has violated any covenant of the League
may be declared to be no longer a Member of the League by a vote of the
Council concurred in by the Representatives of all the other Members of
the League represented thereon.
Article 16a.
[Sidenote: Article 12 of the Protocol, with slight changes.]
In view of the complexity of the conditions in which the Council may be
called upon to exercise the functions mentioned in Article 16
concerning economic and financial sanctions, and in order to determine
more exactly the guarantees afforded to the Members of the League, the
Council shall from time to time invite the economic and financial
organizations of the League to consider and report as to the nature of
the steps to be taken to give effect to the financial and economic
sanctions and measures of co-operation contemplated in Article 16.
From time to time, the Council shall draw up through its competent
organs:
1. Plans of action for the application of the economic and
financial sanctions against an aggressor State;
2. Plans of economic and financial co-operation between a
State attacked and the different States assisting it;
and shall communicate these plans to the Members of the League.
Article 16b.
[Sidenote: Article 13 of the Protocol, with slight changes.]
In view of the contingent military, naval and air sanctions provided
for by Article 16, the Council shall be entitled to receive
undertakings from Members of the League determining in advance the
military, naval and air forces which they would be able to bring into
action immediately to ensure the fulfilment of the obligations in
regard to sanctions which result from the Covenant.
{279}
Furthermore, as soon as the Council has called upon the Members of the
League to apply sanctions, as provided in Article 15d, the said Members
of the League may, in accordance with any agreements which they may
previously have concluded, bring to the assistance of a particular
State, which is the victim of aggression, their military, naval and air
forces.
The agreements mentioned in the preceding paragraph shall be registered
and published by the Secretariat. They shall remain open to all
Members of the League which may desire to accede thereto.
Article 17.
[Sidenote: Article 17 of the Covenant, with verbal changes.]
In the event of a dispute between a Member of the League and a State
which is not a Member of the League, or between States not Members of
the League, the State or States not Members of the League shall be
invited to accept the obligations of membership in the League for the
purposes of such dispute, upon such conditions as the Council may deem
just. If such invitation is accepted, the provisions of the Covenant
shall be applied with such modifications as may be deemed necessary by
the Council.
Upon such invitation being given, the Council shall immediately
institute an inquiry into the circumstances of the dispute and
recommend such action as may seem best and most effectual in the
circumstances.
If a State so invited shall refuse to accept the obligations of
membership in the League for the purposes of such dispute and shall
resort to war against a Member of the League, the provisions of Article
16 shall be applicable as against the State taking such action.
If both parties to the dispute when so invited refuse to accept the
obligations of membership in the League for the purposes of such
dispute, the Council may take such measures and make such
recommendations as will prevent hostilities and will result in the
settlement of the dispute.
Article 17a.
[Sidenote: Article 15 of the Protocol, with verbal changes.]
The Members of the League agree that the whole cost of any military,
naval or air operations undertaken for the repression of an aggression
under the terms of the Covenant, and reparation for all losses suffered
by individuals, whether civilians or combatants, and for all material
damage caused by the operations of both sides, shall be borne by the
aggressor State up to the extreme limit of its capacity.
Nevertheless, in view of Article 10, neither the territorial integrity
nor the political independence of the aggressor State shall in any case
be affected as the result of the applications of the sanctions of the
Covenant.
Articles 18 to 26, Inclusive.
Unchanged.
[1] This is my draft. See _supra_, p. 106. In the text it is called
the "amended" Covenant.
Transcriber's notes:
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1, and moved to the end of the chapter.
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