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diff --git a/28950-8.txt b/28950-8.txt new file mode 100644 index 0000000..fd2c20f --- /dev/null +++ b/28950-8.txt @@ -0,0 +1,11910 @@ +The Project Gutenberg EBook of The Geneva Protocol, by David Hunter Miller + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Geneva Protocol + +Author: David Hunter Miller + +Release Date: May 24, 2009 [EBook #28950] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE GENEVA PROTOCOL *** + + + + +Produced by Al Haines + + + + + + + + +[Transcriber's note: Extensive research found no evidence that the U.S. +copyright on this publication was renewed.] + + + + + +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 + +{138} + + 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: + +{139} + + 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: + +{140} + + 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. + +{141} + + 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 + +{142} + +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. + +{143} + +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. + +{144} + +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. + +{146} + +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 + +{147} + +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 + +{148} + +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. + +{149} + +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. + +{150} + +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 + +{151} + +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 + +{152} + +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: + +In the source book, footnotes on each page were lettered from 'a'. For +this ebook, each chapter's footnotes were numbered, sequentially from +1, and moved to the end of the chapter. + +Page numbers in this ebook are indicated by numbers enclosed in curly +braces, e.g. {99}. 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