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._
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