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."