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.
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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.
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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
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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.
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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._
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