This result is obtained by strengthening the pacific methods of

procedure laid down in the Covenant. The Protocol completes them and

extends them to all international disputes without exception, by making

arbitration compulsory.

In reality, the word "arbitration" is used here in a somewhat different

sense from that which it has generally had up to now. It does not

exactly correspond with the definition given by the Hague Conferences

which, codifying a century-old custom, saw in it "the settlement of

disputes between States by judges of their own choice and on the basis

of respect for law" (Article 37 of the Convention of October 18th,

1907, for the Pacific Settlement of International Disputes).

The arbitration which is now contemplated differs from this classic

arbitration in various respects:

(_a_) It is only part of a great machinery of pacific settlement.

It is set up under the auspices and direction of the Council of

the League of Nations.

(_b_) It is not only an instrument for the administration of

justice. It is, in addition and above all, an instrument of

peace. The arbitrators must no doubt seek in the first place

to apply the rules and principles of international law. This

is the reason why, as will be seen below, they are bound to

consult the Permanent Court of International Justice if one

of the parties so requests. But if international law

furnishes no rule or principle applicable to the particular

{166}

case, they cannot, like ordinary arbitrators, refuse to give a

decision. They are bound to proceed on grounds of equity, for

in our system arbitration is always of necessity to lead to a

definitive solution of the dispute. This is not to be

regretted, for to ensure the respect of law by nations it is

necessary first that they should be assured of peace,

(_c_) It does not rest solely upon the loyalty and good faith

of the parties. To the moral and legal force of an ordinary

arbitration is added the actual force derived from the

international organisation of which the kind of arbitration

in question forms one of the principal elements; the absence

of a sanction which has impeded the development of compulsory

arbitration is done away with under our system.

In the system of the Protocol, the obligation to submit disputes to

arbitration is sound and practical because it has always a sanction.

Its application is automatically ensured, by means of the intervention

of the Council; in no case can it be thrown on one side through the

ill-will of one of the disputant States. The awards to which it leads

are always accompanied by a sanction, adapted to the circumstances of

the case and more or less severe according to the degree of resistance

offered to the execution of the sentence.

{167}

2.--NATURE OF THE RULES OP THE PROTOCOL.

_Article 1._

The rules laid down in the Protocol do not all have the same scope or

value for the future.

As soon as the Protocol comes into force, its provisions will become

compulsory as between the signatory States, and in its dealings with

them the Council of the League of Nations will at once be able to

exercise all the rights and fulfil all the duties conferred upon it.

As between the States Members of the League of Nations, the Protocol

may in the first instance create a dual régime, for, if it is not

immediately accepted by them all, the relations between signatories and

non-signatories will still be governed by the Covenant alone while the

relations between signatories will be governed by the Protocol as well.

But this situation cannot last. Apart from the fact that it may be

hoped that all Members of the League will adhere to it, the Protocol is

in no sense designed to create among the States which accept it a

restricted League capable of competing with or opposing in any way the

existing League. On the contrary, such of its provisions as relate to

articles of the Covenant will, as soon as possible, be made part of the

general law by amendment of the Covenant effected in accordance with

the procedure for revision laid down in Article 26 thereof. The

signatory States which are Members of the League of Nations undertake

to make every effort to this end.

When the Covenant has been amended in this way, some parts of the

Protocol will lose their value as between the said States: some of them

will have enriched the Covenant, while others, being temporary in

character, will have lost their object.

The whole Protocol will remain applicable to relations between

signatory States which are Members of the League of Nations and

signatory States outside the League, or between States coming within

the latter category.

{168}

It should be added that, as the League realises its aim of

universality, the amended Covenant will take the place, as regards all

States, of the separate régime of the Protocol.

3.--CONDEMNATION OF AGGRESSIVE WAR.

_Article 2._

The general principle of the Protocol is the prohibition of aggressive

war.

Under the Covenant, while the old unlimited right of States to make war

is restricted, it is not abolished. There are cases in which the

exercise of this right is tolerated; some wars are prohibited and

others are legitimate.

In future the position will be different. In no case is any State

signatory of the Protocol entitled to undertake on its own sole

initiative an offensive war against another signatory State or against

any non-signatory State which accepts all the obligations assumed by

the signatories under the Protocol.

The prohibition affects only aggressive war. It does not, of course,

extend to defensive war. The right of legitimate self-defence

continues, as it must, to be respected. The State attacked retains

complete liberty to resist by all means in its power any acts of

aggression of which it may be the victim. Without waiting for the

assistance which it is entitled to receive from the international

community, it may and should at once defend itself with its own force.

Its interests are identified with the general interest. This is a

point on which there can be no doubt.

The same applies when a country employs force with the consent of the

Council or the Assembly of the League of Nations under the provisions

of the Covenant and the Protocol. This eventuality may arise in two

classes of cases: either a State may take part in the collective

measures of force decided upon by the League of Nations in aid of one

of its Members which is the victim of aggression; or a State may employ

force with the authorisation of the Council or the Assembly in order to

enforce {169} a decision given in its favour. In the former case, the

assistance given to the victim of aggression is indirectly an act of

legitimate self-defence. In the latter, force is used in the service

of the general interest, which would be threatened if decisions reached

by a pacific procedure could be violated with impunity. In all these

cases the country resorting to war is not acting on its private

initiative but is in a sense the agent and the organ of the community.

It is for this reason that we have not hesitated to speak of the

exceptional authorisation of war. It has been proposed that the word

"force" should be used in order to avoid any mention of "war"--in order

to spare the public that disappointment which it might feel when it

found that, notwithstanding the solemn condemnation of war, war was

still authorised in exceptional cases. We preferred, however, to

recognise the position frankly by retaining the expression "resort to

war" which is used in the Covenant. If we said "force" instead of

"war," we should not be altering the facts in any way. Moreover, the

confession that war is still possible in specific cases has a certain

value, because the term describes a definite and well-understood

situation, whereas the expression "resort to force" would be liable to

be misunderstood, and also because it emphasises the value of the

sanctions at the disposal of the community of States bound by the

Protocol.

4.--COMPULSORY JURISDICTION OF THE PERMANENT COURT OF INTERNATIONAL

JUSTICE.

_Article 3._

The general principle of the Protocol could not be accepted unless the

pacific settlement of all international disputes without distinction

were made possible.

This solution has been found, in the first place, in the extension of

the compulsory jurisdiction of the Permanent Court of International

Justice.

{170}

According to its Statute, the jurisdiction of the Court is, in

principle, optional. On the other hand, Article 36, paragraph 2, of

the Statute, offers States the opportunity of making the jurisdiction

compulsory in respect of all or any of the classes of legal disputes

affecting: (_a_) the interpretation of a Treaty; (_b_) any question of

international law; (_c_) the existence of any fact which, if

established, would constitute a breach of an international obligation;

(_d_) the nature or extent of the reparation to be made for the breach

of an international obligation. States have only to declare their

intention through the special Protocol annexed to the Statute. The

undertaking then holds good in respect of any other State which assumes

the same obligation. It may be given either unconditionally or on

condition of reciprocity on the part of several or certain other

States; either permanently or for a fixed period.

So far such compulsory jurisdiction has only been accepted by a small

number of countries. The majority of States have abstained because

they did not see their way to accept compulsory jurisdiction by the

Court in certain cases falling within one or another of the classes of

dispute enumerated above, and because they were not sure whether, in

accepting, they could make reservations to that effect.

It was for this reason that the Assembly in its resolution of September

6th, requested the First Committee to render more precise the terms of

Article 36, paragraph 2, in order to facilitate its acceptance.

Careful consideration of the article has shown that it is sufficiently

elastic to allow of all kinds of reservations. Since it is open to the

States to accept compulsory jurisdiction by the Court in respect of

certain of the classes of dispute mentioned and not to accept it in

respect of the rest, it is also open to them only to accept it in

respect of a portion of one of those classes; rights need not be

exercised in their full extent. In giving the undertaking in question,

therefore, States are free to declare that it {171} will not be

regarded as operative in those cases in which they consider it to be

inadmissible.

We can imagine possible and therefore legitimate, reservations either

in connection with a certain class of dispute or, generally speaking,

in regard to the precise stage at which the dispute may be laid before

the Court. While we cannot here enumerate all the conceivable

reservations, it may be worth while to mention merely as examples those

to which we referred in the course of our discussions.

From the class of disputes relating to "the interpretation of a treaty"

there may be excluded, for example, disputes as to the interpretation

of certain specified classes of treaty such as political treaties,

peace treaties, etc.

From the class of disputes relating to "any point of international law"

there may be excluded, for example, disputes as to the application of a

political treaty, a peace treaty, etc., or as to any specified question

or disputes which might arise as the outcome of hostilities initiated

by one of the signatory States in agreement with the Council or the

Assembly of the League of Nations.

Again, there are many possible reservations as to the precise stage at

which a dispute may be laid before the Court. The most far-reaching of

these would be to make the resort to the Court in connection with every

dispute in respect of which its compulsory jurisdiction is recognised

contingent upon the establishment of an agreement for submission of the

case which, failing agreement between the parties, would be drawn up by

the Court itself, the analogy of the provisions of the Hague Convention

of 1907 dealing with the Permanent Court of Arbitration being thus

followed.

It might also be stated that the recognition of the compulsory

jurisdiction of the Court does not prevent the parties to the dispute

from agreeing to resort to a preliminary conciliation procedure before

the Council of the League of Nations or any other {172} body selected

by them, or to submit their disputes to arbitration in preference to

going before the Court.

A State might also, while accepting compulsory jurisdiction by the

Court, reserve the right of laying disputes before the Council of the

League with a view to conciliation in accordance with paragraphs 1-3 of

Article 15 of the Covenant, with the proviso that neither party might,

during the proceedings before the Council, take proceedings against the

other in the Court.

It will be seen, therefore, that there is a very wide range of

reservations which may be made in connection with the undertaking

referred to in Article 36, paragraph 2. It is possible that

apprehensions may arise lest the right to make reservations should

destroy the practical value of the undertaking. There seems, however,

to be no justification for such misgivings. In the first place, it is

to be hoped that every Government will confine its reservations to what

is absolutely essential. Secondly, it must be recognised that, however

restrictive the scope of the undertaking may be, it will always be

better than no undertaking at all.

The fact that the signatory States undertake to accede, even though it

be with reservations, to paragraph 2 of Article 36 may therefore be

held to constitute a great advance.

Such accession must take place at latest within the month following

upon the coming into force or subsequent acceptance of the Protocol.

It goes without saying that such accession in no way restricts the

liberty which States possess, under the ordinary law, of concluding

special agreements for arbitration. It is entirely open to any two

countries signatory of the Protocol which have acceded to paragraph 2

of Article 36 to extend still further, as between themselves, the

compulsory jurisdiction of the Court, or to stipulate that before

having recourse to its jurisdiction they will submit their disputes to

a special procedure of conciliation or even to stipulate, either before

or after a dispute {173} has arisen, that it shall be brought before a

special tribunal of arbitrators or before the Council of the League of

Nations rather than to the Court.

It is also certain that up to the time of the coming into force or

acceptance of the Protocol accession to paragraph 2 of Article 36 which

will thenceforth become compulsory, will remain optional, and that if

such accession has already taken place it will continue to be valid in

accordance with the terms under which it was made.

The only point which may cause difficulty is the question what is the

effect of accessions given to the Protocol if the latter becomes null

and void. It may be asked whether such accessions are to be regarded

as so intimately bound up with the Protocol that they must disappear

with it. The reply must be in the negative. The sound rule of

interpretation of international treaties is that, unless there is

express provision to the contrary, effects already produced survive the

act from which they sprang.

The natural corollary is that any State which wishes to make the

duration of its accession to Article 36 dependent on the duration of

the Protocol must make an express stipulation to this effect. As

Article 36 permits acceptance of the engagement in question for a

specified term only, a State may, when acceding, stipulate that it only

undertakes to be bound during such time as the Protocol shall remain in

force.

5.--STRENGTHENING OF PACIFIC METHODS OF PROCEDURE.

_Article 4._

We have, in the second place, succeeded in making possible the pacific

settlement of all disputes by strengthening the procedure laid down in

the Covenant.

_Article 4, paragraph 1._

_Action by the Council with a view to reconciliation_.--If a dispute

does not come within the compulsory jurisdiction of the {174} Permanent

Court of International Justice and if the Parties have been unable to

come to an agreement to refer it to the Court or to submit it to

arbitration, it should, under the terms of Article 15 of the Covenant,

be submitted to the Council, which will endeavour to secure a

settlement by reconciling the parties. If the Council's efforts are

successful, it must, so far as it considers it advisable, make public a

statement giving such facts and explanations regarding the dispute and

the terms of settlement thereof as it may deem appropriate.

In this connection no change has been made in the procedure laid down

by the Covenant. It appeared unnecessary to specify what particular

procedure should be followed. The Council is given the utmost latitude

in choosing the means most appropriate for the reconciliation of the

parties. It may take advice in various quarters; it may hear expert

opinions; it may proceed to investigations or expert enquiries, whether

by itself or through the intermediary of experts chosen by it; it may

even, upon application by one of the parties, constitute a special

conciliation committee. The essential point is to secure, if possible,

a friendly settlement of the dispute; the actual methods to be employed

are of small importance. It is imperative that nothing should in any

way hamper the Council's work in the interests of peace. It is for the

Council to examine the question whether it would be expedient to draw

up for its own use and bring to the notice of the Governments of the

signatory States general regulations of procedure applicable to cases

brought before it and designed to test the good-will of the parties

with a view to persuading them more easily to reach a settlement under

its auspices.

Experience alone can show whether it will be necessary to develop the

rules laid down in the first three paragraphs of Article 15 of the

Covenant.

For the moment it would appear to be expedient to make no addition and

to have full confidence in the wisdom of the Council, it being

understood that, whether at the moment in question or at any other

stage of the procedure, it will be open to the {175} parties to come to

an agreement for some different method of settlement: by way of direct

understanding, constitution of a special committee of mediators or

conciliators, appeal to arbitration or to the Permanent Court of

International Justice.

The new procedure set up by the Protocol will be applicable only in the

event of the Council's failing in its efforts at reconciliation and of

the parties failing to come to an understanding in regard to the method

of settlement to be adopted.

In such case, before going further, the Council must call upon the

parties to submit their dispute to judicial settlement or to

arbitration.

It is only in the case where this appeal--which the Council will make

in the manner which appears to it most likely to secure a favourable

hearing--is not listened to that the procedure will acquire the

compulsory character which is necessary to make certain the final

settlement of all disputes. There are three alternatives:

(_a_) Compulsory arbitration at the request of one of the parties;

(_b_) A unanimous decision by the Council;

(_c_) Compulsory arbitration enjoined by the Council.

Appropriate methods are laid down for all three cases.

_Article 4, paragraph 2._

_First case of Compulsory Arbitration_.--If the parties, being called

upon by the Council to submit their dispute to a judicial or arbitral

settlement, do not succeed in coming to an agreement on the subject,

there is no question of optional arbitration, but if a single party

desires arbitration, arbitration immediately becomes compulsory.

The dispute is then _ipso facto_ referred to a Committee of

Arbitrators, which must be constituted within such time limit as the

Council shall fix.

{176}

Full liberty is left to the parties themselves to constitute this

Committee of Arbitrators. They may agree between themselves in regard

to the number, names and powers of the arbitrators and the procedure.

It is to be understood that the word "powers" is to be taken in the

widest sense, including, _inter alia_, the questions to be put.

It was not considered desirable to develop this idea further. It

appeared to be sufficient to state that any result which could be

obtained by means of an agreement between the parties was preferable to

any other solution.

It also appeared inexpedient to define precisely the powers which

should be conferred upon the arbitrators. This is a matter which

depends upon the circumstances of each particular case. According to

the case, the arbitrators, as is said above, may fill the rôle of

judges giving decisions of pure law or may have the function of

arranging an amicable settlement with power to take account of

considerations of equity.

It has not been thought necessary to lay this down in the form of a

rule. It has appeared preferable to leave it in each case to the

parties to agree between themselves to decide the matter according to

the circumstances of the case.

Nevertheless, consideration has been given to the possibility that the

arbitrators need not necessarily be jurists. It has therefore been

decided that, when called upon to deal with points of law, they shall,

if one of the parties so desires, request, through the medium of the

Council, the advisory opinion of the Permanent Court of International

Justice, which must, in such a case, meet with the utmost possible

despatch. The opinion of the Court is obtained for the assistance of

the arbitrators; it is not legally binding upon them, although its

scientific authority must, in all cases, exercise a strong influence

upon their judgment. With a view to preventing abusively frequent

consultations of this kind, it is understood that the opinion of the

Court in regard to disputed points of law can only be asked on a single

occasion in the course of each case.

{177}

The extension which, in the new system of pacific settlement of

disputes, has been given to the advisory procedure of the Court has

suggested the idea that it might be desirable to examine whether, even

in such cases, it might not be well to adopt the system of adding

national judges which at present only obtains in litigious proceedings,

and also that of applying to the advisory procedure the provisions of

Article 24 of the Statute of the Court relating to withdrawal of judges.

If the parties have not been able to come to an understanding on all or

on some of the points necessary to enable the arbitration to be carried

out, it lies with the Council to settle the unsettled points, with the

exception of the formulation of the questions to be answered, which the

arbitrators must seek in the claims set out by the parties or by one of

them if the others make default.

In cases where the selection of arbitrators thus falls upon the

Council, it has appeared necessary--however much confidence may be felt

in the Council's wisdom--to lay down for the selection of the

arbitrators certain rules calculated to give the arbitration the

necessary moral authority to ensure that it will in practice be

respected.

The first rule is that the Council shall, before proceeding to the

selection of arbitrators, have regard to the wishes of the parties. It

was suggested that this idea should be developed by conferring on the

parties the right to indicate their preferences and to challenge a

certain number of the arbitrators proposed by the Council.

This proposal was set aside on account of the difficulty of laying down

detailed regulations for the exercise of this double right. But it is

understood that the Council will have no motive for failing to accept

candidates proposed to it by the different parties nor for imposing

upon them arbitrators whom they might wish to reject, nor, finally, for

failing to take into account any other suggestion which the parties

might wish to make. It is indeed evident that the Council will always

be desirous of acting {178} in the manner best calculated to increase

to the utmost degree the confidence which the Committee of Arbitrators

should inspire in the parties.

The second rule is based on the same point of view. It lays down the

right of the Council to select the arbitrators and their president from

among persons who, by their nationality, their personal character and

their experience, appear to furnish the highest guarantees of

competence and impartiality.

Here, too, experience will show whether it would be well for the

Council to draw up general regulations for the composition and

functioning of the compulsory arbitration now in question and of that

above referred to, and for the conciliation procedure in the Council

itself. Such regulations would be made for the Council's own use but

would be communicated to the Governments of the signatory States.

_Article 4, paragraph 3._

_Unanimous decision by the Council_.--If arbitration is refused by both

parties the case will be referred back to the Council, but this time it

will acquire a special character. Refusal of arbitration implies the

consent of both parties to a final settlement of the dispute by the

Council. It implies recognition of an exceptional jurisdiction of the

Council. It denotes that the parties prefer the Council's decision to

an arbitral award.

Resuming the examination of the question, the Council has not only the

latitude which it customarily possesses. It is armed with full powers

to settle the question finally and irrevocably if it is unanimous. Its

decision, given unanimously by all the members other than those

representing parties to the dispute, is imposed upon the parties with

the same weight and the same force as the arbitration award which it

replaces.

_Article 4, paragraph 4._

_Second case of Compulsory Arbitration_.--If the Council does not

arrive at a unanimous decision, it has to submit the dispute {179} to

the judgment of a Committee of Arbitrators, but this time, owing to the

parties being deemed to have handed their case over to the Council, the

organisation of the arbitration procedure is taken entirely out of

their hands. It will be for the Council to settle all the details, the

composition, the powers and the procedure of the Committee of

Arbitrators. The Council is of course at liberty to hear the parties

and even to invite suggestions from them, but it is under no obligation

to do so. The only regulation with which it must comply is that, in

the choice of arbitrators, it must bear in mind the guarantees of

competence and impartiality which, by their nationality, their personal

character and their experience, these arbitrators must always furnish.

_Article 4. paragraph 6._

_Effect of, and Sanction enforcing, Decisions_.--Failing a friendly

arrangement, we are, thanks to the system adopted, in all cases certain

of arriving at a final solution of a dispute, whether in the form of a

decree of the Permanent Court of International Justice or in the form

of an arbitral award or, lastly, in the form of a unanimous decision of

the Council.

To this solution the parties are compelled to submit. They must put it

into execution or comply with it in good faith.

If they do not do so, they are breaking an engagement entered into

towards the other signatories of the Protocol, and this breach involves

consequences and sanctions according to the degree of gravity of the

case.

If the recalcitrant party confines itself to offering passive

resistance to the solution arrived at, it will first be the object of

pacific pressure from the Council, which must exercise all its

influence to persuade it to respect its engagements. If the Council is

unsuccessful, it must propose measures calculated to ensure effect

being given to the decision.

On this point the Protocol has been guided solely by the regulation

contained at the end of Article 13 of the Covenant. The {180} Council

may thus institute against the recalcitrant party collective sanctions

of an economic and financial order. It is to be supposed that such

sanctions will prove sufficient. It has not appeared possible to go

further and to employ force against a State which is not itself

resorting to force. The party in favour of which the decision has been

given might, however, employ force against the recalcitrant party if

authorised to do so by the Council.

But if the State against which the decision has been given takes up

arms in resistance thereto, thereby becoming an aggressor against the

combined signatories, it deserves even the severe sanctions provided in

Article 16 of the Covenant, interpreted in the manner indicated in the

present Protocol.

_Sphere of Application of Methods of Pacific Procedure_.--Necessary as

the system which we have laid down is for the purpose of ensuring

settlement of all disputes, in applying it, the pacific aim which

underlies it must be the only guide. It must not be diverted to other

purposes and used as an occasion for chicanery and tendencious

proceedings by which the cause of peace would lose rather than gain.

A few exceptions to the rule have also had to be made in order to

preserve the elasticity of the system. These are cases in which the

claimant must be nonsuited, the claim being one which has to be

rejected _in limine_ by the Council, the Permanent Court of

International Justice or the arbitrators, as the case may be.

The disputes to which the system will not apply are of three kinds:

_Article 4, paragraph 5._

1. The first concerns disputes relating to questions which, at some

time prior to the entry into force of the Protocol have been the

subject of a unanimous recommendation by the Council accepted by one of

the parties concerned. It is essential to {181} international order

and to the prestige of the Council that its unanimous recommendations,

which confer a right upon the State accepting them, shall not be called

into question again by means of a procedure based upon compulsory

arbitration. Failing a friendly arrangement, the only way which lies

open for the settlement of disputes to which these recommendations may

give rise is recourse to the Council in accordance with the procedure

at present laid down in the Covenant.

_Article 4, paragraph 7._

2. The same applies to disputes which arise as the result of measures

of war taken by one or more signatory States in agreement with the

Council or the Assembly of the League of Nations. It would certainly

not be admissible that compulsory arbitration should become a weapon in

the hands of an enemy to the community to be used against the freedom

of action of those who, in the general interest, seek to impose upon

that enemy respect for his engagements.

In order to avoid all difficulty of interpretation, these first two

classes of exceptions have been formally stated in the Protocol.

3. There is a third class of disputes to which the new system of

pacific settlement can also not be applied. These are disputes which

aim at revising treaties and international acts in force, or which seek

to jeopardise the existing territorial integrity of signatory States.

The proposal was made to include these exceptions in the Protocol, but

the two Committees were unanimous in considering that, both from the

legal and from the political point of view, the impossibility of

applying compulsory arbitration to such cases was so obvious that it

was quite superfluous to make them the subject of a special provision.

It was thought sufficient to mention them in this report.

{182}

6.--ROLE OF THE ASSEMBLY UNDER THE SYSTEM SET UP BY THE PROTOCOL.

_Article 6._

The new procedure should be adapted to the old one, which gave the

Assembly the same powers as the Council when a dispute is brought

before it, either by the Council itself or at the request of one of the

parties.

The question has arisen whether the system of maintaining in the new

procedure this equality of powers between the two organs of the League

of Nations is a practical one. Some were of opinion that it would be

better to exclude intervention by the Assembly. Finally, however, the

opposite opinion prevailed; an appeal to the Assembly may, indeed, have

an important influence from the point of view of public opinion.

Without going so far as to assign to the Assembly the same rôle as to

the Council, it has been decided to adopt a mixed system by which the

Assembly is, in principle, substituted for the Council in order that,

when a dispute is referred to it in conformity with paragraph 9 of

Article 15 of the Covenant, it may undertake, in the place of the

Council, the various duties provided for in Article 4 of the present

Protocol with the exception of purely executive acts which will always

devolve upon the Council. For example, the organisation and management

of compulsory arbitration, or the transmission of a question to the

Permanent Court of International Justice, must always be entrusted to

the Council, because, in practice, the latter is the only body

qualified for such purposes.

The possible intervention of the Assembly does not affect in any way

the final result of the new procedure. If the Assembly does not

succeed in conciliating the parties and if one of them so requests,

compulsory arbitration will be arranged by the Council in accordance

with the rules laid down beforehand.

If none of the parties asks for arbitration, the matter is referred

back to the Assembly, and if the solution recommended {183} by the

Assembly obtains the majority required under paragraph 10 of Article 15

of the Covenant, it has the same value as a unanimous decision of the

Council.

Lastly, if the necessary majority is not obtained, the dispute is

submitted to a compulsory arbitration organised by the Council.

In any event, as in the case where the Council alone intervenes, a

definitive and binding solution of the dispute is reached.

7.--DOMESTIC JURISDICTION OF STATES.

_Article 5._

The present Protocol in no way derogates from the rule of Article 15,

paragraph 8, of the Covenant, which protects national sovereignty.

In order that there might be no doubt on this point, it appeared

advisable to say so expressly.

Before the Council, whatever be the stage in the procedure set up by

the Protocol at which the Council intervenes, the provision referred to

applies without any modification.

The rule is applied also to both cases of compulsory arbitration. If

one of the States parties to the dispute claims that the dispute or

part thereof arises out of a matter which by international law is

solely within its jurisdiction, the arbitrators must on this point take

the advice of the Permanent Court of International Justice through the

medium of the Council, for the question thus put in issue is a legal

question upon which a judicial opinion should be obtained.

The Court will thus have to give a decision as to whether the question

in dispute is governed by international law or whether it falls within

the domestic jurisdiction of the State concerned. Its functions will

be limited to this point and the question will in any event be referred

back to the arbitrators. But, unlike other opinions requested of the

Court in the course of a compulsory arbitration--opinions which for the

arbitrators are purely {184} advisory--in the present case the opinion

of the Court is compulsory in the sense that, if the Court has

recognised that the question in dispute falls entirely within the

domestic jurisdiction of the State concerned, the arbitrators will

simply have to register this conclusion in their award. It is only if

the Court holds that the question in dispute is governed by

international law that the arbitrators will again take the case under

consideration in order to give a decision upon its substance.

The compulsory character of the Court's opinion, in this case,

increases the importance of the double question referred to above, in

connection with Article 4, relating to the calling-in of national

judges, and the application of Article 24 of the Statute of the Court

in matters of advisory procedure.

While the principle of Article 15, paragraph 8, of the Covenant is

maintained, it has been necessary, in order to make its application

more flexible, to call in aid the rule contained in Article 11 of the

Covenant, which makes it the duty of the League of Nations, in the

event of war or a threat of war, to "take any action that may be deemed

wise and effective to safeguard the peace of nations," and obliges the

Secretary-General to summon forthwith a meeting of the Council on the

request of any Member of the League. It is in this way understood that

when it has been recognised that a dispute arises out of a matter which

is solely within the domestic jurisdiction of one of the parties, that

party or its opponent will be fully entitled to call upon the Council

or the Assembly to act.

There is nothing new in this simple reference to Article 11. It leaves

unimpaired the right of the Council to take such action as it may deem

wise and effectual to safeguard the peace of nations. It does not

confer new powers of functions on either the Council or the Assembly.

Both these organs of the League simply retain the powers now conferred

upon them by the Covenant.

In order to dispel any doubt which may arise from the {185} parallel

which has been drawn between Article 15, paragraph 8, and Article 11 of

the Covenant, a very clear explanation was given in the course of the

discussion in the First Committee. Where a dispute is submitted to the

Council under Article 15 and it is claimed by one party that the

dispute arises out of a matter left exclusively within its domestic

jurisdiction by international law, paragraph 8 prevents the Council

from making any recommendations upon the subject if it holds that the

contention raised by the party is correct and that the dispute does in

fact arise out of a matter exclusively within that State's jurisdiction.

The effect of this paragraph is that the Council cannot make any

recommendation in the technical sense in which that term is used in

Article 15, that is to say, it cannot make, even by unanimous report,

recommendations which become binding on the parties in virtue of

paragraph G.

Unanimity for the purpose of Article 15 implies a report concurred in

by all the members of the Council other than the parties to the

dispute. Only a report so concurred in is one which the parties to the

dispute are bound to observe, in the sense that, if they resort to war

with any party which complies with the recommendations, it will

constitute a breach of Article 16 of the Covenant and will set in play

the sanctions which are there referred to.

On the other hand, Article 11 is of different scope: first, it operates

only in time of war or threat of war; secondly, it confers no right on

the Council or on the Assembly to impose any solution of a dispute

without the consent of the parties. Action taken by the Council or the

Assembly under this article cannot become binding on the parties to the

dispute in the sense in which recommendations under Article 15 become

binding, unless they have themselves concurred in it.

One last point should be made clear. The reference which is made to

Article 11 of the Covenant holds good only in the eventuality

contemplated in Article 15, paragraph 8, of the Covenant. It is

obvious that when a unanimous decision of the {186} Council or an

arbitral award has been given upon the substance of a dispute, that

dispute is finally settled and cannot again be brought either directly

or indirectly under discussion. Article 11 of the Covenant does not

deal with situations which are covered by rules of law capable of

application by a judge. It applies only to cases which are not yet

regulated by international law. In fact, it demonstrates the existence

of loop-holes in the law.

The reference to Article 11 in two of the articles of the Protocol

(Articles 5 and 10) has advantages beyond those to which attention is

drawn in the commentary on the text of those articles. It will be an

incitement to science to clear the ground for the work which the League

of Nations will one day have to undertake with a view to bringing

about, through the development of the rules of international law, a

closer reconciliation between the individual interests of its Members

and the universal interests which it is designed to serve.

8.--DETERMINATION OF THE AGGRESSOR.

_Article 10._

In order that the procedure of pacific settlement may be accompanied by

the necessary sanctions, it has been necessary to provide for

determining exactly the State guilty of aggression to which sanctions

are to be applied.

This question is a very complex one, and in the earlier work of the

League the military experts and jurists who had had to deal with it

found it extremely difficult.

There are two aspects to the problem: first, aggression has to be

defined, and, secondly, its existence has to be ascertained.

The definition of aggression is a relatively easy matter, for it is

sufficient to say that any State is the aggressor which resorts in any

shape or form to force in violation of the engagements contracted by it

either under the Covenant (if, for instance, being a Member of the

League of Nations, it has not respected the territorial integrity or

political independence of another Member {187} of the League) or under

the present Protocol (if, for instance, being a signatory of the

Protocol, it has refused to conform to an arbitral award or to a

unanimous decision of the Council). This is the effect of Article 10,

which also adds that the violation of the rules laid down for a

demilitarised zone is to be regarded as equivalent to resort to war.

The text refers to resort to war, but it was understood during the

discussion that, while mention was made of the most serious and

striking instance, it was in accordance with the spirit of the Protocol

that acts of violence and force, which possibly may not constitute an

actual state of war, should nevertheless be taken into consideration by

the Council.

On the contrary, to ascertain the existence of aggression is a very

difficult matter, for although the first of the two elements which

together constitute aggression, namely, the violation of an engagement,

is easy to verify, the second, namely, resort to force, is not an easy

matter to ascertain. When one country attacks another, the latter

necessarily defends itself, and when hostilities are in progress on

both sides, the question arises which party began them.

This is a question of fact concerning which opinions may differ.

The first idea which occurs to the mind is to make it the duty of the

Council to determine who is the aggressor. But, immediately, the

question arises whether the Council must decide this question

unanimously, or whether a majority vote would suffice. There are

serious disadvantages in both solutions and they are therefore

unacceptable.

To insist upon a unanimous decision of the Council exposes the State

attacked to the loss of those definite guarantees to which it is

entitled, if one single Member of the Council--be it in good faith or

otherwise--insists on adhering to an interpretation of the facts

different from that of all his colleagues. It is impossible to admit

that the very existence of a nation should be subject to such a hazard.

It is not sufficient to point out that {188} the Council would be bound

to declare the existence of aggression in an obvious case and that it

could not fail to carry out its duty. The duty would be a duty without

a sanction and if by any chance the Council were not to do its duty,

the State attacked would be deprived of all guarantees.

But it would also be dangerous to rely on a majority vote of the

Council. In that case, the danger would be incurred by the State

called upon to furnish assistance and to support the heavy burden of

common action, if it still entertained some doubt as to the guilt of

the country against which it had to take action. Such a country would

run the risk of having to conform to a decision with which it did not

agree.

The only escape from this dilemma appeared to lie in some automatic

procedure which would not necessarily be based on a decision of the

Council. After examining the difficulty and discussing it in all its

aspects, the First Committee believes that it has found the solution in

the idea of a presumption which shall hold good until the contrary has

been established by a unanimous decision of the Council.

The Committee is of opinion that this presumption arises in three

cases, namely, when a resort to war is accompanied:

By a refusal to accept the procedure of pacific settlement or

to submit to the decision resulting therefrom;

By violation of provisional measures enjoined by the Council

as contemplated by Article 7 of the Protocol;

Or by disregard of a decision recognising that the dispute

arises out of a matter which lies exclusively within the

domestic jurisdiction of the other party and by failure or

by refusal to submit the question first to the Council or

the Assembly.

In these cases, even if there is not absolute certainty, there exists

at any rate a very strong presumption which should suffice for the

application of sanctions unless proof to the contrary has been

furnished by a unanimous decision of the Council.

It will be noticed that there is a characteristic difference between

the first two cases and the third.

{189}

In the first two cases the presumption exists when, in addition to a

state of war, the special condition referred to is also fulfilled.

In the third case, however, the presumption is dependent upon three

conditions: disobedience to a decision, wilful failure to take

advantage of the remedy provided in Article 11 of the Covenant, and the

existence of a state of war.

This difference is due to the necessity of taking into account the

provisions of Article 5 analysed above, which, by its reference to

Article 11 of the Covenant, renders the application of paragraph 8 of

Article 15 of the Covenant more flexible. After very careful

consideration it appeared that it would be unreasonable and unjust to

regard as _ipso facto_ an aggressor a State which, being prevented

through the operation of paragraph 8 of Article 15 from urging its

claims by pacific methods and being thus left to its own resources, is

in despair driven to war.

It was considered to be more in harmony with the requirements of

justice and peace to give such a State which has been non-suited on the

preliminary question of the domestic jurisdiction of its adversary, a

last chance of arriving at an amicable agreement by offering it the

final method of conciliation prescribed in Article 11 of the Covenant.

It is only if, after rejecting this method, it has recourse to war that

it will be presumed to be an aggressor.

This mitigation of the rigid character of paragraph 8 of Article 15 has

been accepted, not only because it is just, but also because it opens

no breach in the barrier set up by the Protocol against aggressive war:

it in no way infringes the principle--which remains unshaken--that a

war undertaken against a State whose exclusive jurisdiction has been

formally recognised is an international crime to be avenged

collectively by the signatories of the Protocol.

When a State whose demands have been met with the plea of the domestic

jurisdiction of its adversary has employed the resource provided for in

Article 11 of the Covenant, the presumption of aggression falls to the

ground. The aggression itself {190} remains. It will be for the

Council to decide who is responsible for the aggression in accordance

with the procedure which will be described below.

Apart from the above cases, there exists no presumption which can make

it possible automatically to determine who is the aggressor. But this

fact must be determined, and, if no other solution can be found, the

decision must be left to the Council. The same principle applies where

one of the parties is a State which is not a signatory of the Protocol

and not a Member of the League.

If the Council is unanimous, no difficulty arises. If, however, the

Council is not unanimous, the difficulty is to be overcome by directing

that the Council must enjoin upon the belligerents an armistice the

terms of which it will fix if need be by a two-thirds majority and the

party which rejects the armistice or violates it is to be held to be an

aggressor.

The system is therefore complete and is as automatic as it can be made.

Where a presumption has arisen and is not rejected by a unanimous

decision of the Council, the facts themselves decide who is an

aggressor; no further decision by the Council is needed and the

question of unanimity or majority does not present itself; the facts

once established, the Council is bound to act accordingly.

Where there is no presumption, the Council has to declare the fact of

aggression; a decision is necessary and must be taken unanimously. If

unanimity is not obtained, the Council is bound to enjoin an armistice,

and for this purpose no decision properly speaking has to be taken:

there exists an obligation which the Council must fulfil; it is only

the fixing of the terms of the armistice which necessitates a decision,

and for this purpose a two-thirds majority suffices.

It was proposed to declare that, in cases of extreme urgency, the

Council might determine the aggressor, or fix the conditions of an

armistice, without waiting for the arrival of the {191} representative

which a party not represented among its members has been invited to

send under the terms of paragraph 5 of Article 4 of the Covenant.

It seemed preferable, however, not to lay down any rule on this matter

at present but to ask the special Committee which the Council is to

appoint for the drafting of amendments to the Covenant on the lines of

the Protocol, to consider whether such a rule is really necessary.

It may in fact be thought that the Council already possesses all the

necessary powers in this matter and that, in cases of extreme urgency,

if the State invited to send a representative is too far distant from

the seat of the Council, that body may decide that the representative

shall be chosen from persons near at hand and shall attend the meeting

within a prescribed period, on the expiry of which the matter may be

considered in his absence.

The fact of aggression having been established by presumption or by

unanimous decision of the Council or by refusal to accept or violation

of the armistice, it will only remain to apply the sanctions and bring

into play the obligations of the guarantor States. The Council will

merely call upon them to fulfil their duty; here, again, there is no

decision to be taken but an obligation to be fulfilled, and the

question of majority or unanimous vote does not arise.

It is not, indeed, a matter of voting at all.

In order to leave no room for doubt, it has been formally laid down

that a State which, at the invitation of the Council, engages in acts

of violence against an aggressor is in the legal position of a

belligerent and may consequently exercise the rights inherent in that

character.

It was pointed out in the course of the discussion that such a State

does not possess entire freedom of action. The force employed by it

must be proportionate to the object in view and must be exercised

within the limits and under the conditions recommended by the Council.

{192}

_Article 18._

Likewise, in order to avoid any misunderstanding, it has been

stipulated, in a special Article, that unanimity or the necessary

majority in the Council is always calculated according to the rule

referred to on several occasions in Article 15 of the Covenant and

repeated in Article 16 of the Covenant for the case of expulsion of a

Member from the League, viz., without counting the votes of the

representatives of the parties to the dispute.

9.--DISPUTES BETWEEN STATES SIGNATORY AND STATES NON-SIGNATORY OF THE

PROTOCOL.

_Article 16._

As regards the settlement of disputes arising between a State signatory

and one or more States non-signatory and non-Members of the League of

Nations, the new system has had to be adapted to the former system.

In order that States signatory might enjoy the essential advantages

offered by the Protocol, which forbids all wars of aggression, it has

been necessary to bring the rule laid down in Article 17 of the

Covenant into harmony with the provisions of the Protocol. It has

therefore been decided that States non-signatory and non-Members of the

League of Nations in conflict with a State signatory shall be invited

to conform to the new procedure of pacific settlement and that, if they

refuse to do so and resort to war against a State signatory, they shall

be amenable to the sanctions provided by Article 16 of the Covenant as

defined by the Protocol.

There is no change in the arrangements laid down in the Covenant for

the settlement of disputes arising between States Members of the League

of Nations of which one is a signatory of the Protocol and the other is

not. The legal nexus established by the Covenant between two such

parties does not allow the signatory States to apply as of right the

new procedure of pacific settlement to non-signatory but Member States.

All that {193} signatory States are entitled to expect as regards such

other States is that the Council should provide the latter with an

opportunity to follow this procedure and it is to be hoped that they

will do so. But such States can only be offered an opportunity to

follow the new procedure; they cannot be obliged to follow it. If they

refuse, preferring to adhere to the procedure laid down in the

Covenant, no sanctions could possibly be applied to them.

The above indicated solution of the case of States non-signatory but

Members of the League of Nations appears to be so obvious as to require

no special mention in the Protocol. A proposal to make a special

mention of the matter was made, but after explanations had been given,

the authors withdrew their suggestion, declaring that they would be

satisfied with the above reference to the subject.

At first sight the difference in the way it is proposed to treat

non-signatories non-Members of the League of Nations and

non-signatories Members of the League may cause some surprise, for it

would seem that the signatory States impose greater obligations on the

first category than on the second. This, however, is only an

appearance. In reality, the signatory States impose no obligations on

either category. They cannot do so because the present Protocol is

_res inter alias acta_ for all non-signatory States, whether they are

Members of the League of Nations or not. The signatories merely

undertake obligations as between themselves as to the manner in which

they will behave if one of them becomes involved in a conflict with a

third State. But whereas, in possible conflicts with a State

non-signatory and non-Member of the League, they are entirely free to

take such action as they choose, in conflicts which may arise between

them and States non-signatory but Members, like themselves, of the

League of Nations, their freedom of action is to some extent

circumscribed because both parties are bound by legal obligations

arising under the Covenant.

{194}

2.--WORK OF THE THIRD COMMITTEE.

(_Rapporteur_: M. BENES)

SECURITY AND REDUCTION OF ARMAMENTS.

(_Articles 7 to 9, 11 to 15, 17 and 21 of the Protocol_)

1.--INTRODUCTION.

The special work of the Third Committee was to deal with the problem of

security (sanctions) and the reduction of armaments.

The work required, above all, important political negotiations. While

the question of arbitration only required one political decision of

principle, namely, the acceptance of compulsory arbitration, and the

remainder was principally a matter of drafting--without question an

extremely difficult task--of a scheme for the application of such

arbitration, the questions of security and disarmament necessitated

long and laborious political negotiations; for they involved

fundamental interests, questions of vital importance to the States,

engagements so far-reaching as radically to change the general

situation of the various countries.

Although in the work of the First Committee the Assembly had distinctly

indicated in its resolution of September 6th that there was a

likelihood--indeed, a necessity--of amending the Covenant, the work of

the Third Committee as regards questions of security and reduction of

armaments had, in conformity with the debates of the Assembly, to

remain within the framework of the Covenant. Above all, it was a

question of developing and rendering more precise what is already laid

down in the Covenant. All our discussions, all our labours, were

guided by these principles, and a delicate task was thus imposed upon

us. But the spirit of conciliation which pervaded all the discussions

has permitted us to resolve the two problems which were placed before

us. This is, indeed, an important result, and if the solution of the

problem of arbitration which has been so {195} happily arrived at by

the First Committee be also taken into consideration, we are in the

presence of a system the adoption of which may entirely modify our

present political life.

This is the real import of the articles of the Protocol concerning the

questions of security and reduction of armaments.

2.--THREAT OF AGGRESSION: PREVENTIVE MEASURES.

_Article 7._

The pacific settlement of disputes being provided for in the present

Protocol, the signatory States undertake, should any conflict arise

between them, not to resort to preparations for the settlement of such

dispute by war and, in general, to abstain from any act calculated to

aggravate or extend the said dispute. This principle applies both to

the period preceding the submission of the dispute to arbitration or

conciliation and to the period in which the case is pending.

This provision is not unaccompanied by sanctions. Any appeal against

the violation of the aforesaid undertakings may, in conformity with

Article 11 of the Covenant, be brought before the Council. One might

say that, in addition to such primary dispute as is or might be

submitted to the Council or to some other competent organ, a second

dispute arises, caused by the violation of the undertakings provided

for in the first paragraph.

The Council, unless it be of opinion that the appeal is not worthy of

consideration, will proceed with the necessary enquiries and

investigations. Should it be established that an offence has been

committed against the provisions of the first paragraph, it will be the

duty of the Council, in the light of the results of such enquiries and

investigations, to call upon any State guilty of the offence to put an

end thereto. Any such State failing to comply will be declared by the

Council to be guilty of violation of the Covenant (Article 11) or the

Protocol.

The Council must, further, take the necessary measures to put an end,

as soon as possible, to a situation calculated to {196} threaten the

peace of the world. The text does not define the nature of these

preventive measures. Its elasticity permits the Council to take such

measures as may be appropriate in each concrete case, as, for example,

the evacuation of territories.

Any decisions which may be taken by the Council in virtue of this

Article may be taken by a two-thirds majority, except in the case of

decisions dealing with questions of procedure which still come under

the general rule of Article 5, paragraph 2, of the Covenant. The

following decisions, therefore, can be taken by a two-thirds majority:

The decision as to whether there has or has not been an offence

against the first paragraph;

The decision calling upon the guilty State to remedy the offence;

The decision as to whether there has or has not been refusal to

remedy the offence;

Lastly, the decision as to the measures calculated to put an end,

as soon as possible, to a situation calculated to threaten the

peace of the world.

The original text of Article 7 provided that, in the case of enquiries

and investigations, the Council should avail itself of the organisation

to be set up by the Conference for the Reduction of Armaments in order

to ensure respect for the decisions of that Conference. There is no

longer any mention of this organisation, but this omission does not

prejudice any decisions which the Conference may be called upon to take

regarding the matter. It will be entirely free to set up an

organisation, if it judges this necessary, and the Council's right to

make use of this body for the enquiries and investigations contemplated

will, _a fortiori_, remain intact.

_Article 8._

Article 8 must be considered in relation to Article 2. Article 2

establishes the obligation not to resort to war, while Article 8,

giving effect to Article 10 of the Covenant, goes further. The {197}

signatories undertake to abstain from any act which might constitute a

threat of aggression against any other State. Thus, every act which

comes within the scope of this idea of a threat of war--and its scope

is sufficiently elastic--constitutes a breach of the Protocol, and

therefore a dispute with which the Council is competent to deal.

If, for example, one State alleges that another State is engaged in

preparations which are nothing less than a particular form of threat of

war (such as any kind of secret mobilisation, concentration of troops,

formation of armed bodies with the connivance of the Government, etc.),

the Council, having established that there is a case for consideration,

will apply the procedure which may be defined as the procedure of

preventive measures; it will arrange for suitable enquiries and

investigations, and, in the event of any breach of the provisions of

paragraph 1 being established, will take the steps described in Article

7, paragraph 4.

3.--SECURITY--SANCTIONS.

_Article 11._

(_Article 11, paragraphs 1 and 2, of the Protocol in its relation to

Articles 10 and 16 of the Covenant_)

According to Article 10 of the Covenant, Members of the League

undertake to preserve as against external aggression the territorial

integrity and existing political independence of all Members of the

League. In case of aggression, the Council shall advise upon the means

by which this obligation shall be fulfilled.

According to Article 16, should any Member of the League resort to war

in disregard of its engagements under Articles 12, 13 or 15, all other

Members of the League undertake immediately to apply economic

sanctions; furthermore, it shall be the duty of the Council to

recommend to the several Governments concerned what effective military,

naval or air forces the Members of the League shall severally

contribute to the armed forces to be used to protect the engagements of

the League.

{198}

At the time when they were drafted at the Peace Conference in Paris in

1919, these articles gave rise to keen controversy as to the exact

scope of the engagements entered into in these provisions, that is to

say, as to the nature and extent of the obligations referred to in

Article 10, the exact moment at which such obligations arose, and the

legal consequences of the Council recommendations referred to in

Article 16, paragraph 2. This controversy continued, as is well known,

in the debates here in Geneva, where the question has been discussed in

previous years.

Article 11 is intended to settle this controversy. The signatories of

the present Protocol accept the obligation to apply against the

aggressor the various sanctions laid down in the Covenant, as

interpreted in Article 11 of the Protocol, when an act of aggression

has been established and the Council has called upon the signatory

States immediately to apply such sanctions (Article 10, last

paragraph). Should they fail so to do, they will not be fulfilling

their obligations.

The nature and extent of this obligation is clearly defined in

paragraph 2 of Article 11. According to this paragraph, the reply to

the question whether a signatory to the Protocol has or has not

fulfilled its obligation depends on whether it has loyally and

effectively co-operated in resisting the act of aggression to an extent

consistent with its geographical position and its particular situation

as regards armaments.

The State remains in control of its forces, and itself, and not the

Council, directs them, but paragraph 2 of Article 11 gives us positive

material upon which to form a judgment as to whether or not the

obligation has been carried out in any concrete case. This criterion

is supplied by the term: _loyally and effectively_.

In answering the question whether a State has or has not fulfilled its

obligations in regard to sanctions, a certain elasticity in the

obligations laid down in Article 11 allows of the possibility of

_taking into account, from every point of view, the position of each

State which is a signatory to the present Protocol_. The signatory

States are not all in possession of equal facilities for {199} acting

when the time comes to apply the sanctions. This depends upon the

geographical position and economic and social condition of the State,

the nature of its population, internal institutions, etc.

Indeed, during the discussion as to the system of sanctions, certain

delegations declared that their countries were in a special situation

by reason of their geographical position or the state of their

armaments. These countries desired to co-operate to the fullest extent

of their resources in resistance to every act of aggression, but they

drew attention to their special conditions. In order to take account

of this situation, an addition has been made to paragraph 2 of Article

11 pointing out this state of affairs and laying stress on the

particular situation of the countries in question. Moreover, Article

13 of the Protocol allows such countries to inform the Council of these

matters beforehand.

I would further add that the obligations I refer to are imperfect

obligations in the sense that no sanctions are provided for against any

party which shall have failed loyally and effectively to co-operate in

protecting the Covenant and resisting every act of aggression. It

should, however, be emphasised that such a State would have failed in

the fulfilment of its duties and would be guilty of a violation of

engagements entered into.

In view of the foregoing, the gist of Article 11, paragraphs 1 and 2,

might be expressed as follows: Each State is the judge of the manner in

which it shall carry out its obligations but not of the existence of

those obligations, that is to say, each State remains the judge of what

it will do but no longer remains the judge of what it should do.

Now that the present Protocol has defined more precisely the origin,

nature and extent of the obligations arising out of the Covenant, _the

functions of the Council, as provided in Articles 10 and 16, have

become clearer and more definite_.

Directly the Council has called upon the signatories to the Protocol to

apply without delay the sanctions provided in {200} Article 11, it

becomes a regulating, or rather an advisory, body, but not an executive

body. The nature of the acts of aggression may vary considerably; the

means for their suppression will also vary. It would frequently be

unnecessary to make use of all the means which, according to paragraphs

1 and 2 of Article 11, are, so to speak, available for resisting an act

of aggression. It might even be dangerous if, from fear of failing in

their duties, States made superfluous efforts. It will devolve upon

the Council, which, under Article 13 can be put in possession of the

necessary data, to give _its opinion_, should need occur, as to the

best means of executing the obligations which arise directly it enjoins

the application of sanctions, especially as to the sequence in which

the sanctions must be applied.

The practical application of the sanctions would, however, always

devolve upon the Governments; the real co-operation would ensue upon

their getting into touch, through diplomatic channels--perhaps by

conferences--and by direct relations between different General Staffs,

as in the last war. The Council would, of course, be aware of all

these negotiations, would be consulted and make recommendations.

The difference between the former state of affairs and the new will

therefore be as follows:

According to the system laid down by the Covenant:

1. The dispute arises.

2. In cases where neither the arbitral procedure nor the

judicial settlement provided for in Article 13 of the Covenant

is applied, the Council meets and discusses the dispute,

attempts to effect conciliation, mediation, etc.

3. If it be unsuccessful and war breaks out, the Council, if

unanimous, has to express an opinion as to which party is

guilty. The Members of the League then decide for themselves

whether this opinion is justified and whether their

obligations to apply economic sanctions become operative.

4. It then has, _by a unanimous decision, to recommend_

military sanctions.

{201}

5. If unanimity cannot be obtained, the Council ceasing to take

action, each party is practically free to act as it chooses.

According to the new system defined in the Protocol, the situation is

as follows:

1. The dispute arises.

2. The system of peaceful settlement provided for by the

Protocol comes into play.

3. The Council intervenes, and if, after arbitration has been

refused, war is resorted to, if the provisional preventive

measures are not observed, etc., the Council decides which

party is the aggressor and calls upon the signatory States

to apply the sanctions.

4. This decision implies that such sanctions as the case

requires--economic, financial, military, naval and air--shall

be applied forthwith, and without further recommendations or

decisions.

We have therefore the following new elements:

(_a_) The obligation to apply the necessary sanctions of every

kind as a direct result of the decision of the Council.

(_b_) The elimination of the case in which all parties would be

practically free to abstain from any action. The introduction

of a system of arbitration and of provisional measures which

permits of the determination in every case of the aggressor.

(_c_) No decision is taken as to the strength of the military,

naval and air forces, and no details are given as to the

measures which are to be adopted in a particular case. None

the less, objective criteria are supplied which define the

obligation of each signatory; it is bound, in resistance to an

act of aggression, to collaborate _loyally and effectively_ in

applying the sanctions in accordance with its geographical

situation and its particular situation as regards armaments.

That is why I said that _the great omission in the Covenant has been

made good_.

{202}

It is true that no burden has been imposed on States beyond the

sanctions already provided for in the Covenant. But, at present, a

State seeking to elude the obligations of the Covenant can reckon on

two means of escape:

(1) The Council's recommendations need not be followed.

(2) The Council may fail to obtain unanimity, making

impossible any declaration of aggression, so that no

obligation to apply military sanctions will be imposed

and everyone will remain free to act as he chooses.

We have abandoned the above system and both these loopholes are now

closed.

_Article 11, paragraphs 3 and 4._

Paragraph 3 of Article 11 has been drafted with a view to giving

greater precision to certain provisions of Article 11, paragraph 3, of

the Covenant. Article 16, paragraph 3, refers to mutual support in the

application of financial and economic measures. Article 11, paragraph

3, of the present Protocol establishes real economic and financial

co-operation between a State which has been attacked and the various

States which come to its assistance.

As, under Article 10 of the Protocol, it may happen that both States

involved in a dispute are declared to be aggressors, the question arose

as to what would be the best method of settling this problem. There

were three alternatives: to apply the principle contained in paragraph

1, which is practically equivalent to making a sort of police war on

both parties--or to leave the matter to pursue its course, or, finally,

to compel States which disturb the peace of the world to desist from

acts of war by the employment of means less severe than those indicated

in paragraph 1. It is the last method which has been chosen. Only

economic measures will be taken against such States, and naturally they

will not be entitled to receive the assistance referred to in Article

11, paragraph 3.

{203}

_Article 12._

Article 16, paragraph 1, of the Covenant provides for the immediate

severance of all trade or financial relations with the aggressor State,

and paragraph 3 of the same Article provides, _inter alia_, for

economic and financial co-operation between the State attacked and the

various States coming to its assistance.

As has already been pointed out, these engagements have been confirmed

and made more definite in Article 11 of the Protocol.

But the severance of relations and the co-operation referred to

necessarily involve measures so complex that, when the moment arises,

doubts may well occur as to what measures are necessary and appropriate

to give effect to the obligations assumed under the above provisions.

These problems require full consideration in order that States may know

beforehand what their attitude should be.

Article 12 defines the conditions of such investigation.

It is not expressly stated that the problem will be examined by the

Council in collaboration with the various Governments, but the Council

will naturally, if it deems it necessary, invite the Governments to

furnish such information as it may require for the purpose of carrying

out the task entrusted to it under Article 12.

_Article 13, paragraph 1._

The above explanation of Article 11, paragraphs 1 and 2, contains many

references to Article 13.

As I have already pointed out, in case sanctions have to be applied, it

is highly important that there should exist some organ competent to

express an opinion as to the best way in which their obligations could

be carried out by the signatories. As you are aware, this organ,

according to the Covenant, is the Council. In order that the Council

may effectively fulfil this duty, Article 13 empowers it to receive

undertakings from States, determining _in advance_ the military, naval

and air forces which they would {204} be able to bring into action

immediately in order to ensure the fulfilment of the obligations in

regard to sanctions arising, out of the Covenant and the present

Protocol.

It is also necessary to emphasise the fact that the means which the

States signatories to the present Protocol have at their disposal for

the fulfilment of the obligations arising out of Article 11 vary

considerably owing to the differences in the geographical, economic,

financial, political and social condition of different States.

Information as to the means at the disposal of each State is therefore

indispensable in order that the Council may in full understanding give

its opinion as to the best method by which such obligations may best be

carried out.

Finally, as regards the question of the reduction of armaments, which

is the final goal to which our efforts are tending, the information

thus furnished to the Council may be of very great importance, as every

State, knowing what forces will be available for its assistance in case

it is attacked, will be able to judge to what extent it may reduce its

armaments without compromising its existence as a State, and every

State will thus be able to provide the International Conference for the

Reduction of Armaments with very valuable data. I should add,

moreover, that Article 13, paragraph 1, does not render it compulsory

for States to furnish this information. It is desirable that States

should furnish the Council with this information, but they are at

liberty not to do so.

_Article 13, paragraphs 2 and 3._

The provisions of Article 13, paragraphs 2 and 3, refer to the special

agreements which were discussed at such length last year. In view of

the fact that, according to paragraph 2, such agreements can only come

into force when the Council has invited the signatory States to apply

the sanctions, the nature of these agreements may be defined as follows:

Special agreements must be regarded as the means for the rapid

application of sanctions of every kind in a particular case {205} of

aggression. They are additional guarantees which give weaker States an

absolute assurance that the system of sanctions will never fail. They

guarantee that there will always be States prepared immediately to

carry out the obligations provided for in Article 11 of the Protocol.

In accordance with Article 18 of the Covenant, it is expressly stated

that these agreements will be registered and published by the

Secretariat, and it has also been decided that they will remain open

for signature to any State Member of the League of Nations which may

desire to accede to them.

4.--ENDING OF SANCTIONS: PUNISHMENT OF THE AGGRESSOR.

_Article 14._

Article 14 is in perfect keeping with the last paragraphs of Articles

10 and 11. In the paragraphs in question, the coming into operation of

the sanctions depends upon an injunction by the Council; it therefore

also devolves upon the Council to declare that the object for which the

sanctions were applied has been attained. Just as the application of

the sanctions is a matter for the States, so it rests with them to

liquidate the operations undertaken with a view to resisting the act of

aggression.

_Article 15._

Paragraph 1 is similar to Article 10 of the Draft Treaty of Mutual

Assistance drawn up last year.

Paragraph 2 is designed to prevent the sanctions provided for in

Article 11 from undergoing any change in character during the process

of execution and developing into a war of annexation.

In view of the observations of various delegations regarding the

punishment of the aggressor, it should be added that it would be

incorrect to interpret this article as meaning that the only penalties

to be apprehended by the aggressor as the result of his act shall be

the burdens referred to in paragraph 1. If {206} necessary, securities

against fresh aggression, or pledges guaranteeing the fulfilment of the

obligations imposed in accordance with paragraph 1, might be required.

Only annexation of territory and measures involving the loss of

political independence are declared inadmissible.

"Territory" is to be taken to mean the whole territory of a State, no

distinction being made between the mother-country and the colonies.

5.--REDUCTION OF ARMAMENTS.

_Articles 17 and 21._

Although it has not been possible to solve the problem of the reduction

of armaments in the clauses of the document submitted to the Assembly

for approval, our work paves the way to it and makes it possible.

The reduction of armaments will result, in the first place, from the

general security created by a diminution of the dangers of war arising

from the compulsory pacific settlement of all disputes.

It will also ensue from the certainty which any State attacked will

have of obtaining the economic and financial support of all the

signatory States, and such support would be especially important should

the aggressor be a great Power, capable of carrying on a long war.

Nevertheless, for States which, owing to their geographical position,

are especially liable to attack, and for States whose most important

centres are adjacent to their frontiers, the dangers of a sudden attack

are so great that it will not be possible for them to base any plan for

the reduction of their armaments simply upon the political and economic

factors referred to above, no matter what the importance of such

factors may be.

It has also been repeatedly declared that many States would require to

know what military support they could count on, before the convening of

the Conference, if they are to submit to {207} the Conference proposals

for large reductions of armaments; this might necessitate negotiations

between the Governments and with the Council before the meeting of the

Conference for the reduction of armaments provided for in Article 17.

The undertakings referred to in Article 13 of the Protocol should be

interpreted in the light of the above.

In drawing up the general programme of the Conference, it will also be

necessary, as stated in paragraph 2 of Article 17, for the Council,

apart from other criteria "to take into account the undertakings

mentioned."

In view of the close interdependence of the three great problems

involved, namely, the pacific settlement of disputes, sanctions against

those who disturb the peace of the world, and reduction of armaments,

the Protocol provides for the convening by the Council of a general

Conference for the Reduction of Armaments and for the preparation of

the work of such a Conference. Furthermore, the application of the

clauses concerning arbitration and sanctions will be conditional on the

adoption by the said Conference of a plan for the reduction and

limitation of armaments.

Moreover, in order to preserve the connection between the three big

problems referred to above, it is provided that the whole Protocol will

lapse in the event of the non-execution of the scheme adopted by the

Conference. It devolves upon the Council to declare this under

conditions to be determined by the Conference itself.

The last paragraph of Article 21 provides for the case of the partial

lapsing of the Protocol after it has been put into force. Should the

plan adopted by the Conference be regarded as having been put into

effect, any State which fails to execute it, so far as it is concerned,

will not benefit by the provisions of the Protocol.

{208}

6.--THE COVENANT AND THE PROTOCOL.

_Article 19._

The present Protocol emphasises and defines certain obligations arising

out of the Covenant. Those of which the present Protocol makes no

mention are not affected in any manner. They still exist. Examples

which might be quoted are those laid down in Article 16, paragraph 3,

of the Covenant, namely, the obligation of the States to give one

another mutual support in order to minimise the loss and inconvenience

resulting from the application of the economic and financial sanctions

or the obligation of the States to take the necessary steps to afford

passage through their territory to forces which are co-operating to

protect the covenants of the League.

Moreover, as the Swiss Delegation suggests, attention should be

directed to the fact that the present Protocol does not in any way

affect the special position of Switzerland arising out of the

Declaration of the Council at London on February 13th, 1920. As the

special position of Switzerland is in accordance with the Covenant, it

will also be in accordance with the Protocol.

III.

CONCLUSION.

No further explanations need be added to these comments on the

articles. The main principles of the Protocol are clear, as are the

detailed provisions.

Our purpose was to make war impossible, to kill it, to annihilate it.

To do this, we had to create a system for the pacific settlement of all

disputes which might arise. In other words, it meant the creation of a

system of arbitration from which no international dispute, whether

legal or political, could escape. The plan drawn up leaves no

loophole; it prohibits wars of every description and lays down that all

disputes shall be settled by pacific means.

{209}

But this absolute character which has been given to the system of

arbitration should also belong to the whole of the scheme, to the

treatment of every question of principle. If there were one single gap

in the system, if the smallest opening were left for any measure of

force, the whole system would collapse.

To this end arbitration is provided for every kind of dispute, and

aggression is defined in such a way as to give no cause for hesitation

when the Council has to take a decision.

These reasons led us to fill in the gaps in the Covenant and to define

the sanctions in such a way that no possible means could be found of

evading them, and that there should be a sound and definite basis for

the feeling of security.

Finally, the Conference for the Reduction of Armaments is indissolubly

bound up with this whole system: _there can be no arbitration or

security without disarmament, nor can there be disarmament without

arbitration and security_.

The peace of the world is at stake.

The Fifth Assembly has undertaken a work of worldwide political

importance which, if it succeeds, is destined profoundly to modify

present political conditions. This year great progress in this

direction has been made in our work. If we succeed, the League of

Nations will have rendered an inestimable service to the whole modern

world. Such success depends partly upon the Assembly itself and partly

upon individual Governments. We submit to the Assembly the fruit of

our labours: a work charged with the highest hopes. We beg the

Assembly to examine our proposals with care, and to recommend them to

the various Governments for acceptance.

In this spirit and with such hopes do we request the Assembly to vote

the draft resolutions 1 and 2 that are presented with this Report.

{210}

ANNEX D.

RESOLUTIONS.

RESOLUTION OF THE ASSEMBLY, SEPTEMBER 6TH, 1924.

The Assembly,

Noting the declarations of the Governments represented, observes with

satisfaction that they contain the basis of an understanding tending to

establish a secure peace,

Decides as follows:

With a view to reconciling in the new proposals the divergences between

certain points of view which have been expressed and, when agreements

have been reached, to enable an International Conference upon Armaments

to be summoned by the League of Nations at the earliest possible moment:

(1) The Third Committee is requested to consider the material

dealing with security and the reduction of armaments,

particularly the observations of the Governments on the

draft Treaty of Mutual Assistance prepared in pursuance

of Resolution XIV of the Third Assembly and other plans

prepared and presented to the Secretary-General, since

the publication of the draft Treaty, and to examine the

obligations contained in the Covenant of the League in

relation to the guarantees of security which a resort to

arbitration and a reduction of armaments may require:

(2) The First Committee is requested:

(_a_) To consider, in view of possible amendments, the

articles in the Covenant relating to the settlement

of disputes;

(_b_) To examine within what limits the terms of Article

36, paragraph 2, of the statute establishing the

Permanent Court of International Justice might be

rendered more precise and thereby facilitate the

more general acceptance of the clause;

and thus strengthen the solidarity and the security of the nations of

the world by settling by pacific means all disputes which may arise

between States.

{211}

RESOLUTION OF THE ASSEMBLY, SEPTEMBER 27TH, 1924.

Whereas the work of the League of Nations in connection with the

reduction of armaments is entering this year upon a period of

re-organisation which requires the direct attention of the Council,

The Assembly entrusts to the Council the question of the co-ordination

of the work of its Commissions for the Reduction of Armaments.

The Assembly recommends the Council to re-organise the Temporary Mixed

Commission in conformity with the following principles:

(1) The Commission shall include the representatives of a

certain number of Governments;

(2) The Commission shall include qualified delegates of the

Technical Organisation of the League of Nations, that

is to say:

Representatives of the Economic Committee,

" " " Financial Committee,

" " " Transit Committee,

" " " Permanent Advisory Commission,

" " " Employers' and Labour

Groups of the International

Labour Office,

Experts, jurists or others elected by the Council.

(3) Delegates of States not represented on the Commission

may be invited to attend whenever the Commission

thinks fit.

(4) The Council may invite any States not Members of the

League of Nations which may have notified their intention

of taking part in the International Conference for the

Reduction of Armaments to appoint representatives to

participate in the work of the Commission.

RESOLUTION OF THE ASSEMBLY, OCTOBER 2ND, 1924.

I. The Assembly,

Having taken note of the reports of the First and Third {212}

Committees on the questions referred to them by the Assembly resolution

of September 6th, 1924,

Welcomes warmly the draft Protocol on the Pacific Settlement of

International Disputes proposed by the two Committees, of which the

text is annexed to this resolution, and

Decides

(1) To recommend to the earnest attention of all the Members of the

League the acceptance of the said draft Protocol;

(2) To open immediately the said Protocol in the terms proposed for

signature by those representatives of Members of the League who are

already in a position to sign it and to hold it open for signature by

all other States;

(3) To request the Council forthwith to appoint a Committee to draft

the amendments to the Covenant contemplated by the terms of the said

Protocol;

(4) To request the Council to convene an International Conference for

the Reduction of Armaments, which shall meet at Geneva as provided by

the following stipulations of Article 17 of the draft Protocol:

"In preparation for the convening of the Conference, the

Council shall draw up, with due regard to the undertakings

contained in Articles 11 and 13 of the present Protocol, a

general programme for the reduction and limitation of

armaments which shall be laid before the Conference and be

communicated to the Governments at the earliest possible

date, and at the latest, three months before the

Conference meets.

"If by May 1st, 1925, ratifications have not been deposited

by at least a majority of the permanent Members of the

Council and ten other Members of the League, the

Secretary-General of the League shall immediately consult

the Council as to whether he shall cancel the invitations

or merely adjourn the Conference to a subsequent date to

be fixed by the Council so as to permit the necessary

number of ratifications to be obtained."

{213}

(5) To request the Council to put into immediate execution the

provisions of Article 12 of the draft Protocol.

RECOMMENDATION OF THE ASSEMBLY, OCTOBER 2ND, 1924.

II. The Assembly,

Having taken cognisance of the report of the First Committee upon the

terms of Article 36, paragraph 2, of the Statute of the Permanent Court

of International Justice;

Considering that the study of the said terms shows them to be

sufficiently wide to permit States to adhere to the special Protocol,

opened for signature in virtue of Article 36, paragraph 2, with the

reservations which they regard as indispensable;

Convinced that it is in the interest of the progress of international

justice, and consistent with the expectations of the opinion of the

world, that the greatest possible number of States should, to the

widest possible extent, accept as compulsory the jurisdiction of the

Court.

Recommends:

States to accede at the earliest possible date to the special Protocol

opened for signature in virtue of Article 36, paragraph 2, of the

Statute of the Permanent Court of International Justice.

RESOLUTION OF THE ASSEMBLY, OCTOBER 2ND, 1924.

I. The Assembly recommends the Council to place the question of

Regional Agreements for the Reduction of Armaments on the agenda of the

International Conference for the Reduction of Armaments.

II. Whereas the majority of the States which have replied have stated

that, with certain exceptions, they have not exceeded the expenditure

on armaments shown in their last budgets, and whereas the

recommendation addressed to the Governments relates to the period which

must elapse before the meeting of the International Conference for the

Reduction of Armaments, which is to take place next year:

{214}

The Assembly does not consider it necessary to repeat the

recommendation regarding the limitation of expenditure on armaments, as

this question is to be placed upon the agenda of the International

Conference for the Reduction of Armaments.

III. The Assembly is of the opinion:

1. That another technical conference on naval disarmament is

unnecessary.

2. That the question of naval disarmament should be discussed

as part of the general question of disarmament dealt with

by the International Conference proposed in the resolution

of September 6th, 1924, adopted by the Fifth Assembly, and

that it rests with the Council to settle the programme.

IV. The Assembly requests the Council, in preparing the general

programme of the Conference for the Reduction of Armaments provided for

in Article 17 of the Protocol, to consider the advisability of

including in that programme the following points:

1. General plan for a reduction of armaments in accordance

with Article 8 of the Covenant, in particular:

(_a_) Basis and methods of reduction (budget, peace-time

effectives, tonnage of naval and air fleets, population,

configuration of frontiers, etc.);

(_b_) Preparation of a typical budget for expenditure on

armaments.

2. Special position of certain States in relation to the

reduction of armaments:

(_a_) Temporary reservations by countries exposed to

special risks;

(_b_) Recommendation of regional agreements for the

reduction (or limitation) of armaments,

3. Recommendation of the establishment of demilitarised

zones (Article 9).

4. Control and investigation of armaments in the contracting

States.

{215}

The Assembly also requests the Council to instruct the competent

organisations of the League to examine the schemes relating to the

above questions which have already been submitted to the Third

Committee, or which may subsequently be received by the Secretariat,

and to take them into consideration in preparing the programme of the

Conference.

RESOLUTION OF THE COUNCIL, OCTOBER 3RD, 1924.

1. With a view to the preparation of the Conference for the Reduction

of Armaments, the Council decides to form itself into a Committee. The

representatives on the Council who consider that it will not be

possible to attend the Committee in person will, as soon as possible,

send to the Secretary-General the names of their substitutes on this

Committee.

The Committee will hold its first meeting on November 17th, in order to

draw up a general programme of the work connected with the application

of Article 12 of the Protocol and with the reduction of armaments.

The Governments of the States represented on the Council are requested

to give their representatives on the Committee the necessary

instructions in order that the general lines of the programme may be

laid down during its meeting of November 17th.[1] {216} The

Secretary-General will invite the Governments of the States Members of

the League not represented on the Council to forward through him to the

Committee any suggestions which they may think useful with a view to

the preparation of this programme.

2. The Secretariat is requested to collect the data necessary for the

economic and financial investigations relative to the application of

Article 12 of the Protocol, and is authorised to distribute these data

to the competent organs of the League (Economic and Financial

Organisation and Transit Organisation) with a view to the work which

will subsequently be required of them by the Committee.

The Secretariat will obtain information from the official documents at

the disposal of the League or from documents which might, if necessary,

be furnished by the Governments.

3. In conformity with the Assembly resolution, and in order to assist

the Committee in co-ordinating the preparatory work for the Conference,

the Temporary Mixed Commission shall be re-organised and shall take the

name of the Co-ordination Commission, and be composed as follows:

(_a_) The Committee of the Council (ten members) assisted by:

(_b_) The President and one member or two members of each

of the three Organisations, Economic, Financial and

Transit (six members);

(_c_) Six members appointed by the Permanent Advisory

Commission (six members);

(_d_) Two members of the Employers' Group and two members

of the Workers' Group of the Governing Body of the

International Labour Office, appointed by the latter

(four members);

(_e_) If considered advisable, a certain number of

experts--jurists and others--appointed by the Council.

The Secretary-General is requested to invite at a suitable moment the

above-mentioned organisations to appoint their representatives.

[1] The Council, at its 31st Session at Brussels, October 28th, 1924,

"decided itself to undertake at its session in Rome (December, 1924)

the work of preparing for the Conference on the Reduction of

Armaments," instructing the Council Committee to continue and complete

this work and report to the Council at its session in March, 1925.

The work of either the Council or its Committee was dependent to a

large extent upon the receipt of suggestions from Members of the League

which had been requested from them in a circular letter of the

Secretary-General, October 11, 1924.

Various items regarding the Protocol of Geneva were on the Agenda of

the Council for its December, 1924, meeting at Rome. Preparatory work

regarding "the general program" under the second paragraph of Article

17 of the Protocol was the most important. Two other relevant items

were (1) the reorganization of the Temporary Mixed Commission and the

Permanent Advisory Commission into a single co-ordinated Commission;

and (2) the date of the meeting of the Commission of Jurists (appointed

at the Brussels session of the Council in October, 1924) to draft the

amendments to the Covenant contemplated by the Protocol.

A Conservative Government came into power in Great Britain early in

November, 1924, Mr. Austen Chamberlain becoming Foreign Secretary. At

the request of the British Government, the agenda items for the

December, 1924 meeting of the Council at Rome relating to the Protocol

of Geneva were postponed until the March meeting. In the meantime, the

British Government has suggested to the Dominions a meeting of the

Imperial Conference for the purpose of adopting a policy of the British

Commonwealth of Nations regarding the Protocol of Geneva. Whether such

a meeting will be held, or whether the general British policy will be

decided on as a result of correspondence, is not at this writing

certain.

{217}

ANNEX E.

REPORT OF THE BRITISH DELEGATES RELATING TO THE PROTOCOL FOR THE

PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES.

_London, November_ 1, 1924.

Sir,

We have the honour to submit herewith a report on the proceedings at

the Fifth Assembly of the League of Nations at Geneva this year in

connection with the Draft Protocol for the Pacific Settlement of

International Disputes.

I.--INTRODUCTION.

The First Assembly of the League of Nations in 1920 prepared to give

effect to article 8 of the Covenant, the first two paragraphs of which

read: "The Members of the League recognise that the maintenance of

peace requires the reduction of national armaments to the lowest point

consistent with national safety and the enforcement by common action of

International obligations. The Council .......... shall formulate

plans for such reduction for the consideration and action of the

several Governments." That Assembly decided "to instruct a Temporary

Commission to prepare reports and proposals for the reduction of

armaments as provided for by article 8 of the Covenant." In the

following year the Second Assembly defined the task more clearly in a

resolution instructing the Temporary Mixed Commission to make proposals

for the reduction of armaments which, in order to secure precision,

"should be in the form of a draft Treaty or other equally defined plan,

to be presented to the Council, if possible, before the Assembly next

year" (1922). In the course of the ensuing year the Temporary Mixed

Commission was able to formulate certain principles which, in its

opinion, might serve as a basis for the draft Treaty which it had been

instructed to draw up. After discussion of these principles the Third

Assembly passed a resolution--the famous {218} Resolution

14--recognising that in existing circumstances many Governments would

be unable to accept responsibility for a serious reduction of armaments

unless they received in exchange a satisfactory guarantee of the safety

of their country, and suggesting that such guarantee could be found in

a defensive agreement binding them to provide immediate and effective

assistance, in accordance with a pre-arranged plan, in the event of one

of them being attacked. The Temporary Mixed Commission were instructed

to prepare a draft Treaty on these lines. The result of their labours

was submitted to the Fourth Assembly last year in the form of the Draft

Treaty of Mutual Assistance, which was referred by the Assembly to the

Governments for their observations.

2. Certain Governments accepted the draft Treaty in principle: very few

intimated their readiness to adhere to its actual terms. His Majesty's

Government, in a note which has already been made public,[1] explained

the reasons which would render it impossible for them to subscribe to

the Treaty.

3. When, therefore, the Fifth Assembly met on the 1st September of this

year, the labours of four years, which had been devoted to the

preparation of a scheme for giving effect to the obligation undertaken

by all signatories in article 8 of the Covenant, had not succeeded in

establishing agreement, and there seemed no prospect of making any

further advance along the path which had hitherto been followed.

4. Some new direction would have to be given, and the presence in

Geneva of the British and French Prime Ministers gave a special

importance to the meeting.

5. It was realised that the problem was not merely to find a general

scheme of disarmament and security, but that the particular question of

French security was of immediate political importance, and would

shortly require a solution. The question of "security" had already

been raised in conversations between Mr. MacDonald and M. Herriot in

July last, at Chequers {219} and in Paris. During the latter meeting,

the subject was discussed at some length, and the position as it was

then left by the two Prime Ministers was set out in the Franco-British

memorandum of the 9th July concerning the application of the Dawes

plan. The relevant paragraph read as follows: "The two Governments

have likewise proceeded to a preliminary exchange of views on the

question of security. They are aware that public opinion requires

pacification: they agree to co-operate in devising through the League

of Nations or otherwise, as opportunity presents itself, means of

securing this, and to continue the consideration of the question until

the problem of general security can be finally solved." In a

declaration made in the Chamber on the 21st August, reporting on the

results of the London Conference, M. Herriot said "security must be the

object of another Conference. He did not see why France should not

take the initiative .......... For the rest, the security question

would be dealt with at Geneva."

6. The debate in the League Assembly was opened by the British Prime

Minister on the 4th September. Mr. Ramsay MacDonald began by

explaining that it was not because they were indifferent to the problem

of national security that His Majesty's Government had given an adverse

opinion on the Draft Treaty of Mutual Assistance. They believed that

security could not be based on military alliances, and they hesitated

to become involved in any agreements which committed them to vague and

indefinite obligations. In this respect the Treaty of Mutual

Assistance was open to criticism, especially in its article 3 and in

its definition of aggression. Mr. Ramsay MacDonald emphasised that the

main problem was the problem of national security in relation to

national armaments, and the initial difficulty was encountered in the

definition of such terms as "security" and "aggression." In regard to

the latter, he said, "the one method by which we can approximate to an

accurate attribution of responsibility for aggression is arbitration,"

and he proposed that the article of the Statute of the Permanent Court

dealing with {220} arbitration should be carefully examined by a

Commission, with a view to its being placed before the Assembly in a

somewhat more precise, expanded and definite form than it now had.

Such a step would be necessary as a preliminary to the discussion of

disarmament, which could produce no good result unless an atmosphere of

confidence were previously created. To summon a Conference on

disarmament without such a preparation of the ground would be to court

immediate and disastrous failure. Such a Conference must be the

ultimate aim, and it must include all the nations and must be held in

Europe. In his view the Covenant already contained ample provisions

for starting arbitration, for the sanctions that were necessary and for

all other eventualities that might arise: what was now required was

that the Covenant should be elaborated. "The British Government thinks

that the matter should now be explored, beginning with the Covenant,

applying the Covenant to our present circumstances, and, in the spirit

of the League of Nations, developing a policy that will give security

and reduce armaments. The British Government stands by the Covenant.

The British Government has no wish to reduce the authority of the

Council. It rather wishes to extend the authority of the Council

consistently with the continued existence and prosperity of the League.

Articles 10, 12, 13, 15 and 16 of the Covenant might well form

themselves into a charter of peace if we would only apply them and fill

them out."

7. Speaking on the following day, the French Prime Minister expressed a

similar view: "It is in the development and the fullest possible

application of the articles of this solemn instrument (the Covenant)

that France seeks for the rules which are to guide her future action

and her foreign policy." M. Herriot welcomed Mr. Ramsay MacDonald's

suggestion that arbitration should be the test of aggression, and he

expressed the hope that the Fifth Assembly would be able to accept the

principle of arbitration, which would solve the difficulties, as

henceforth the aggressor would be the party which refused arbitration.

M. Herriot {221} added: "Arbitration is essential, but it is not

sufficient. It is a means, but not an end. It does not entirely

fulfil the intentions of article 8 of the Covenant, which are security

and disarmament. We in France regard three terms--arbitration,

security and disarmament--as inseparable." A nation which accepted

arbitration had a right to security. "Justice without might is

impotent. Might without justice is tyranny." In conclusion: "We stand

by the Covenant, but we wish to make it a living Covenant. We simply

claim for each nation the rights conferred upon it by the Covenant, no

more and no less."

8. It is unnecessary to indicate in detail the views expressed by other

speakers who participated in this opening debate, from which it was

evident that there was general agreement on a number of points:--

(_a_.) That as a preliminary to disarmament there must be provided

an inclusive scheme for the pacific settlement of international

disputes of all kinds.

(_b_.) That the Covenant of the League itself provided the basis

of such a scheme, but that it required elaboration, precision and

extension in certain directions.

(_c_.) That to give effect to such a scheme States should develop

the principle of compulsory arbitration.

(_d_.) That a State, having accepted this principle, would, if it

resorted to force in disregard of its obligation to submit to

arbitration, be automatically declared an aggressor, and outlawed.

(_e_.) That some form of co-operation must be devised for effective

resistance to aggression, both as a deterrent to any possible

aggressor and as a guarantee of security to all States enabling

them to contemplate a reduction of their own armed forces, which

at present constituted their sole guarantee of safety.

9. In order to give effect to these ideas, a resolution was submitted

to the Assembly on the 6th September by the British and French

delegations in the following terms:--

{222}

"The Assembly,

"Noting the declarations of the Governments represented, observes

with satisfaction that they contain the basis of an understanding

tending to establish a secure peace,

"Decides as follows:--

"With a view to reconciling in the new proposals the divergencies

between certain points of view which have been expressed, and when

agreement has been reached, to enable an international conference

upon armaments to be summoned by the League of Nations at the

earliest possible moment--

"(1.) The Third Committee is requested to consider the material

dealing with security and reduction of armaments, particularly the

observations of the Governments on the draft Treaty of Mutual

Assistance prepared in pursuance of Resolution 14 of the Third

Assembly, and other plans prepared and presented to the

Secretary-General since the publication of the draft Treaty, and

to examine the obligations contained in the Covenant of the League

in relation to the guarantees of security which a resort to

arbitration and a reduction of armaments may require;

"(2.) The First Committee is requested--

"(_a_.) To consider, in view of possible amendments, the articles

in the Covenant relating to the settlement of disputes;

"(_b_.) To examine within what limits the terms of article 36,

paragraph 2, of the Statute establishing the Permanent Court of

International Justice might be rendered more precise, and thereby

facilitate the more general acceptance of the clause;

"And thus strengthen the solidarity and the security of the

nations of the world by settling, by pacific means, all disputes

which may arise between States."

10. This resolution was carried unanimously by the Assembly, which thus

deputed the preparatory work to its First Committee (dealing with legal

and constitutional questions) and its Third Committee (dealing with

reduction of armaments).

{223}

11. It will be more convenient at once to consider the final results of

the labours of the two Committees, leaving for the moment any detailed

account of the progress of their work, in order to see how the draft

Protocol which they submitted to the Full Assembly on the 1st October

gave effect to the ideas which had been proclaimed in the course of the

earlier debate.

12. In the first place it was necessary to complete the scheme of

arbitration and conciliation provided in the Covenant. The Covenant

itself did not provide for every eventuality, and by failing to offer

pacific means of settlement of all disputes, it left open, or seemed to

leave open, in certain circumstances resort to force. Especially was

this so in article 12 of the Covenant, whereby the Members of the

League agreed "in no case to resort to war until three months after the

award by the arbitrators or the report by the Council." Further,

paragraph 7 of article 15 of the Covenant laid down that "if the

Council fails to reach a report which is unanimously agreed to by the

Members thereof, other than the representatives of one or more of the

parties to the dispute, the Members of the League reserve to themselves

the right to take such action as they shall consider necessary for the

maintenance of right and justice." Under article 2 of the Protocol

"the signatory States _agree_ in no case to resort to war either with

one another or against a State which, if the occasion arises, accepts

all the obligations hereinafter set out, except in case of resistance

to acts of aggression or when acting in agreement with the Council or

the Assembly of the League of Nations in accordance with the provisions

of the Covenant and of the present Protocol." The signatory States

having agreed in no case to resort to war, the Protocol proceeds to

prohibit the arbitrament of force and to provide a complete system for

the pacific settlement of disputes. As regards cases covered by

paragraph 2 of article 36 of the statute of the Permanent Court of

International Justice, the signatory States bind themselves to

recognize as obligatory the jurisdiction of that Court, "but without

prejudice to the right of any State, when {224} acceding to the special

Protocol provided for in the said article and opened for signature on

the 16th December, 1920, to make reservations compatible with the said

clause" (article 3). As regards other subjects of dispute, the

Protocol provides a procedure (article 4) which supplements and

completes that defined in article 15 of the Covenant. Briefly, under

this procedure, if the Council is at the outset unable to effect a

settlement, it persuades the parties to submit to arbitration. If

neither party should be willing to go to arbitration, the Council again

takes the matter into consideration: If it reaches a unanimous

decision, the parties are bound to accept that decision: if it fails to

achieve unanimity, the Council itself refers to arbitrators, whose

award is final and binding on the parties to the dispute.

13. Thus for every dispute that may arise there is a procedure of

pacific settlement, and provision has been made in the Protocol for

meeting points (_a_), (_b_) and (_c_) in paragraph 8 above.

14. The establishment of a complete and comprehensive system for the

pacific settlement of all disputes that might arise rendered it easier

to approach the problem of the definition of "aggression." As the

Prime Minister had said, "the one method by which we can approximate to

an accurate attribution of responsibility for aggression is

arbitration." In other words, any State which refused to avail itself

of the means at hand for a peaceful settlement of a dispute, or which

refused to accept the award given by the arbitral body or bodies now

provided, and proceeded to an act of war, would brand itself as the

aggressor. This principle is embodied in article 10 of the Protocol,

which thus gives effect to the idea indicated in paragraph 8 (_d_)

above. The definition of aggression is extended by articles 7 and 8 of

the Protocol to apply to military measures taken before or during

proceedings for a pacific settlement, and to acts constituting a threat

of aggression against another State.

15. The point raised in paragraph 8 (_e_) above is dealt with in

article 11 of the Protocol. Directly aggression takes place, {225} the

Council calls upon the signatory States to apply sanctions against the

aggressor (article 10). As soon as the Council has thus called upon

the signatory States, "the obligations of the said States, in regard to

the sanctions of all kinds mentioned in paragraphs 1 and 2 of article

16 of the Covenant, will immediately become operative in order that

such sanctions may forthwith be employed against the aggressor. Those

obligations shall be interpreted as obliging each of the signatory

States to co-operate loyally and effectively in support of the Covenant

of the League of Nations, and in resistance to any act of aggression,

in the degree which its geographical position and its particular

situation as regards armaments allow." Article 12 of the Protocol

provides for the establishment of plans for putting into effect

economic and financial sanctions, and article 13, "in view of the

contingent military, naval and air sanctions provided for by article 16

of the Covenant," empowers the Council "to receive undertakings from

States determining in advance the military, naval and air forces which

they would be able to bring into action immediately to ensure the

fulfilment of the obligations in regard to sanctions which result from

the Covenant and the present Protocol."

The Geneva Protocol · 第 21 / 22 章