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.
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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.
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