scrutinized and has been the subject of more criticism than any other
article of the draft Protocol, and a hasty examination of it by some
critics has led them to object that it goes beyond article 16 of the
Covenant and imposes fresh obligations on the signatory States. In
reply to such critics, it may be best to quote the words used by the
British delegate in his speech to the Third Committee on the 22nd
September:--
"It cannot be too strongly emphasized that everything in this
article is already stated or implied in article 16 of the
Covenant. We are remaining within the terms of the Covenant and
we are undertaking no new obligations .......... Surely loyal
and effective co-operation in support of the Covenant is what
may confidently be expected from every Member of the League of
{226}
Nations .......... The extent of the co-operation must depend on
the actual circumstances not only as regards the aggression but
also as regards the geographical position and the resources of
all kinds of individual States. It would be no use to bind
oneself to do a variety of things which may not be required. We
must and we can rely on the good faith of the Members of the
League to decide themselves how their effective co-operation can
best be given if and when the necessity arises."
17. In order to complete the fulfilment of the task assigned to the
committees by the Assembly's resolution of the 6th September, the
Protocol finally provides (article 17) for the summoning in June next
year of an International Conference for the reduction of armaments, to
meet in Geneva and to include representatives of all states whether
Members of the League or not. M. Herriot first, and other speakers
after him, had emphasised the interdependence of the three great
problems of arbitration, security and disarmament, and the framers of
the Protocol, bearing this in mind, have been careful to preserve this
interdependence in the document itself. Thus if sufficient
ratifications of the Protocol have not been received by a certain date,
the Conference on Disarmament is to be postponed. In any case, the
Protocol does not come into force until that Conference shall have
adopted a plan for the reduction of armaments. And if within a further
period, that plan has not been carried out, the Protocol becomes null
and void.
18. The above brief summary indicates how in the Protocol the
committees of the Assembly have sought to embody, in concrete form, the
proposals made to the Assembly itself by the British and French Prime
Ministers. The Protocol is an attempt to complete the Covenant, to
facilitate and develop the procedure of pacific settlement provided
therein, and to define more clearly the obligations imposed by it on
States Members of the League. The Protocol is based on the Covenant
and keeps within its terms except in so far that it extends the
Covenant procedure to give an alternative procedure by peaceful {227}
settlement, even in those cases for which the framers of the Covenant
in 1919 were unable to find a remedy. So far as it contains anything
new, it is to be found in the definition of aggression which follows as
a necessary corollary to the limitations inserted in the establishment
of a universal system of peaceful settlement. But even here the
principle is not new. Article 16 of the Covenant decreed that
sanctions should be applied against any Member of the League that might
"resort to war in disregard of its Covenants under articles 12, 13 or
15." Article 10 of the Protocol decrees sanctions against any State
resorting to war without availing itself or in defiance of, the
procedure of pacific settlement provided in the Covenant as amplified
by the Protocol itself. The amplification of that procedure to cover
all cases, so as to remove all excuse for resort to war, has enabled
the framers of the Protocol to give a more exact definition of
aggression, and to make that definition more certain and more
automatic. The Protocol is thus free from the reproach that had been
levelled against the Draft Treaty of Mutual Assistance, which left a
wide and dangerous discretion to the Council in determining which party
to a dispute was the aggressor. It further discards the system
proposed in the draft Treaty, whereby power was given to the Council to
decide on and to direct the military sanctions required. The draft
Treaty tended towards the realisation of the idea of the League as a
"super-State": the Protocol respects the principle of national
sovereignty. Every State retains its own liberty of action: it is
still free to choose what it will do. The Protocol has stated in
clearer terms what is expected of those who signed the Covenant in
1919, and it is to be hoped that this more explicit declaration may
serve to deter those who would contemplate a violation of the spirit of
the Covenant, whilst reassuring those who have hitherto sought safety
in their own armed strength, by giving them confidence in the
solidarity of the civilised nations and in their determination to
resist all unscrupulous attempts to plunge the world again into the
disaster of war.
{228}
19. It remains only to say a few words as to the actual procedure
adopted by the Assembly for putting into effect the scheme thus
elaborated. It was generally agreed that mere resolutions of the
Assembly would not give sufficient assurance of progress. The famous
Resolution 14 of the Third Assembly had been discussed and debated and
had seemed to lead to an impasse with the rejection of the Treaty of
Mutual Assistance. The Prime Minister, in his speech to the Assembly,
had said: "Let us see to it that even before we rise, before the
Assembly breaks up, some substantial progress shall be made in
co-ordinating these ideas and in producing from their apparent
diversities some measure of agreement and consent." It was therefore
decided that the scheme should be embodied in the form of a Protocol,
ready for signature, and that the Assembly should pass a resolution
endorsing the principles contained therein, recommending the Protocol
to the Governments for their acceptance, and directing that it should
be opened immediately for signature. The terms of this Resolution,
which was carried unanimously, have already been published.
20. The Protocol itself was signed in Geneva by Delegates of the
Governments of Albania, Bulgaria, Esthonia, France, Greece, Latvia,
Poland, Portugal, the Serb-Croat-Slovene State and Czechoslovakia. The
Delegate of France at the same time signed on behalf of his Government
the special Protocol opened for signature in virtue of article 36,
paragraph 2, of the Statute of the Permanent Court of International
Justice, making the following declaration:--
"I hereby declare that, subject to ratification, the French
Government gives its adhesion to the optional clause of article
36, paragraph 2, of the Statute of the Court, on the condition of
reciprocity, for a period of fifteen years, with power of
denunciation, should the Protocol of Arbitration, Security and the
Reduction of Armaments, signed this day, lapse, and further,
subject to the observations made at the First Committee of the
Fifth Assembly, according to the terms of which 'one of the
{229}
parties to the dispute may bring the said dispute before the
Council of the League of Nations for the purposes of the pacific
settlement laid down in paragraph 3 of article 15 of the Covenant,
and during such proceedings neither party may take proceedings
against the other in the Court.'"
21. Having briefly summarized the discussion which gave rise to the
elaboration of the draft Protocol, and having examined in what way that
instrument embodies the ideas expressed in that discussion, it may be
of interest to review summarily the progress of the work of the two
Committees of the Assembly that were charged with the drafting of the
scheme, and to show how the various articles were evolved.
22. It will be seen from the terms of the resolution of the 6th
September that the scheme of "arbitration, security and disarmament,"
though forming one indivisible whole, would require the deliberation of
two of the regular Committees of the Assembly. The First Committee,
dealing with the legal questions, would have to develop the principle
of arbitration, while the Third Committee, dealing with the reduction
of armaments, would have to consider the problems of security and
disarmament.
23. It was realised that the work would overlap at many points, and the
two Committees kept in constant touch throughout, the result of their
labours being finally co-ordinated by a joint drafting sub-Committee.
24. During the whole period of discussion the British Delegation kept
in close touch with the Dominion and Indian Delegations, who were
consulted on all points of difficulty, and who were given every
opportunity of expressing their views. This was done, not only by
means of private consultation, but also at fourteen formal meetings of
the Delegations.
25. In the following sections an attempt is made to trace the evolution
of the Protocol through its various stages in the First and Third
Committees.
{230}
II.--WORK OF THE FIRST COMMITTEE.
26. The first plenary meeting of the First Committee was held on the
2nd September, when Sir Littleton Groom (Australia) was elected
Chairman, and M. Limburg (Netherlands) Vice-Chairman. Sir C. Hurst
represented the British Empire.
27. On the 9th September the Committee began its deliberations on the
Assembly resolution of the 6th September regarding arbitration,
security and disarmament. The Assembly, by this resolution, instructed
the First Committee:--
"(_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 security of the nations of the
world by settling by pacific means all disputes which may arise between
States."
28. The British Delegation commenced their labours by considering the
second of these two tasks, as it was a British suggestion emanating
from the Prime Minister himself. The question of the acceptance by His
Majesty's Government of the principle of compulsory arbitration for
legal disputes, as provided in the optional clause referred to in
article 36, paragraph 2, of the Statute establishing the Permanent
Court of International Justice, had been examined in London before the
meeting of the Assembly. This examination had shown so clearly the
difficulties which might arise in connection with disputes with neutral
Powers arising out of British naval action in time of war, that the
limitation of the acceptance by his Majesty's Government of the
optional clause by the exclusion of disputes arising out of British
belligerent action at sea was suggested. To achieve this it was
proposed that His Majesty's Government {231} should make a reservation
as to disputes arising out of action taken in conformity with the
Covenant, or at the request, or with the approval, of the Council of
the League.
29. The suggestion was accepted by the British Delegation. As however,
the question was clearly one which affected the Empire as a whole, the
Dominion and Indian Delegations were especially consulted in regard to
it. The position as it appeared to the British Delegation was fully
explained to them, and it was understood that they would telegraph to
their respective Governments, making clear the nature of the
reservation proposed.
30. The general discussion by the First Committee of the subject of the
acceptance of the compulsory jurisdiction of the Permanent Court of
International Justice took place at the third plenary meeting on the
11th September. The British Delegate reminded the Committee that the
views of His Majesty's Government had already been explained in the
Assembly in regard to the optional clause. The Prime Minister had then
stated that the British Government wished to sign a clause of this
kind, subject to its being clearly drafted. The British Delegate
proceeded to discuss the position of the British Empire supposing that
it accepted the compulsory jurisdiction of the Court, and was then
forced, in support of the Covenant, to go to war at sea. Sea warfare,
he said, inevitably brought a belligerent into sharp conflict with the
nationals of foreign Powers carrying on trade with the enemy State.
The British Empire might therefore find itself forced to support before
the International Court the legality of action taken at the request of
the League itself. The British Delegation therefore asked the
Committee to consider whether it would be possible, either by amendment
of article 36, paragraph 2, of the Statute of the Court or by the
admission of a reservation acceptable to other Members of the League,
to exclude from the acceptance of that clause disputes which arose out
of action taken, either in accordance with the Covenant, or at the
request, or with the sanction, of the Council of the League.
{232}
31. The French Delegation were content with the idea of such a
reservation, and both the Belgian and Brazilian Delegations stated that
they had no objection to it. The delegate of Brazil, however, said he
would prefer to proceed by way of a reservation rather than by any
modification of the text. Though the representatives of the
Netherlands and of Sweden were slightly more critical, it became
apparent that no real objection would be raised to the British
reservation.
32. The Belgian Delegate suggested even going further still and
excluding, when accepting the optional clause, the whole of sub-heading
(_b_), which relates to questions of international law. The effect of
this would be to exclude all questions of international law where that
law has not yet been codified, as where it has been codified the
dispute becomes one of the interpretation of a Treaty. This, the
British Delegation thought, would be going too far. It would deprive
the International Court of the power to build up a case law in the
international field. It would, moreover, have gone further than the
Delegation felt necessary, because it was only in the field of
established international law, where there are two distinct schools of
thought--the continental and the Anglo-Saxon--that the difficulties
referred to by the British Delegate would arise.
33. As regards the question of amendments to the Covenant, the French
representative did not, during the general discussion in a plenary
meeting of the First Committee, specify the nature of the amendments
suggested by the French Delegation. He contented himself with drawing
attention to three points. The first was the last sentence of article
13 of the Covenant, which provides that in the event of any failure to
carry out an arbitration award, the Council shall propose what steps
shall be taken to give effect thereto. This the French Delegation
regarded as inadequate. The second was the provision of article 15 by
which, if the Council cannot reach a unanimous decision, the parties to
a dispute which is submitted to the Council recover their liberty of
action. Here, he said, was a gap in the {233} Covenant which must be
filled. Was the position to be perpetuated, he asked, by which any one
member of the Council could completely prevent a peaceful settlement of
a dispute? The third was paragraph 8 of article 15, which provides
that in matters within the domestic jurisdiction of a State the Council
can make no recommendation. The French Delegation asked the Committee
to consider whether it would not be possible to discover a method of
friendly conciliation over matters relating to domestic jurisdiction.
34. After the general discussion had been declared closed, the First
Committee adjourned for a week and entrusted to a sub-committee, known
as the Fifth Sub-Committee, the task of formulating concrete proposals.
The work done by this sub-committee was of such importance that it is
considered desirable to indicate its composition, which was as follows:
Mr. Adatci (Japan).
Count Albert Apponyi (Hungary).
M. Loucheur (France).
Mr. John O'Byrne (Irish Free State).
M. Erich (Finland).
M. Raul Fernandez (Brazil).
Sir Cecil Hurst (British Empire).
M. Nicolas Politis (Greece).
M. Rolin (Belgium).
M. Vittorio Scialoja (Italy).
M. Nicolas Titulesco (Roumania).
M. Torriente (Cuba).
M. Limburg (Netherlands).
M. Unden (Sweden).
35. The discussion was taken up on the 12th September in the
sub-committee on the lines of the general debate in the full Committee.
The meetings were not open to the public. As regards the proposed
British reservation to the acceptance of the obligatory jurisdiction of
the Permanent Court of International Justice, by signing the optional
clause in the Statute of the Court, some opposition developed at first
from two quarters. Subsequently, however, it waned and did not
reappear.
{234}
36. As regards the extension of the principle of arbitration by
amendments to the Covenant, it at once became clear that there were
many conflicting views as to the best system to adopt. The days were
spent mainly in ascertaining, inside and outside the sub-committee, the
extent and the nature of the different points of view.
37. The work on which the sub-committee was engaged was intimately
related to the questions of security and disarmament with which the
Third Committee was dealing. On the 16th September, Dr. Benes,
chairman of the sub-committee of the Third Committee, who had been in
close touch with the British and French Delegations, produced a draft
Protocol covering the whole ground, in which he had attempted to
reconcile opposing points of view and which was intended to serve as a
basis for discussion. Articles 1, 2, 3 and 5 of this draft Protocol
concerned the First Committee and were referred to the sub-committee.
They may be summarised as follows:--
38. _Article_ 1.--The signatories recognise the jurisdiction of the
Permanent Court of International Justice as compulsory, "subject to the
following reserves":--
39. _Article_ 2.--The signatories undertake to submit all disputes, not
covered by articles 12, 13 and 15 of the Covenant, to the Council of
the League, subject to an express reserve as to the right given
exclusively to the Assembly in article 19 of the Covenant, whereby the
Assembly alone is entitled to advise the reconsideration of existing
treaties. The Council in such cases to act as an arbitration tribunal
and to decide by a majority vote. Pending an examination of the
dispute the Council may, by a majority, define measures to be taken by
the parties to avert or put an end to armed conflict. Similarly, the
Council may, in case of imminent danger, call upon the parties to
discontinue any measure likely to cause the dispute to become more
acute.
40. _Article_ 3.--The procedure laid down in article 2 to apply to the
Permanent Court in cases concerning the competence of that Court.
{235}
41. _Article_ 5.--Any signatory which does not submit its disputes to
the methods of pacific settlement indicated above, or which does not
comply with the provisional measures referred to in article 2, or which
does not carry out an award of a duly qualified arbitral body, shall,
if these acts of non-compliance are likely to disturb the peace of the
world, be declared to be an aggressor and outlawed, the declaration to
be made by the Permanent Court or by the Council acting, if need be, by
a majority. When this declaration has been made, the Council is to
call on Members of the League to put into operation the sanctions
contained in article 7.
42. Consideration of these proposals and of those contained in two
other schemes submitted led to long discussions in the Committee.
These discussions served mainly to bring into relief the different
schools of thought. One favoured the widest possible extension of the
jurisdiction of the Permanent Court, even into the field of disputes of
a political nature; the other held that the Court's jurisdiction should
be rigidly limited to disputes of a legal character, while a
far-reaching system of arbitration should be established to deal with
political disputes. Strong disinclination was shown towards any
increase in the existing powers of the Council. On the other hand, it
was made clear that no decrease of those powers would be tolerated. On
one side it was urged that the Council, when acting as an arbitral
body, should make its decisions by a majority vote; on the other,
strong exception was taken to any departure from the unanimity rule.
As regards the application of sanctions, one group held that mere
refusal to arbitrate or failure to carry out an award should justify
their application. Another contended equally strongly that sanctions
should only be applied when such refusal or failure was accompanied by
a resort to war. The extent to which war was legitimate under the
Covenant in cases relating to domestic jurisdiction was very fully
discussed. The net result was a unanimous agreement to leave paragraph
8 of article 15 untouched.
{236}
43. As regards the filling of the gap in article 15 of the Covenant,
little progress was made. On the 19th September, therefore, the
British representative submitted a scheme to the sub-committee, in
which he had endeavoured to meet the differences of opinion which had
been expressed. This scheme provided for the acceptance as compulsory
of the jurisdiction of the Permanent Court in the cases covered by
article 36, paragraph 2, of the Statute of the Court, with such
reserves as may be consistent therewith. Its main object was, however,
the amendment of the Covenant on the lines of the following text:--
"The undersigned will support the introduction of amendments to
article 15 of the Covenant for the purpose of amplifying paragraphs
4, 5, 6 and 7 of that article on the following lines:--
"If the dispute submitted to the Council is not settled by it as
provided in paragraph 3, the Council shall endeavour to persuade
the parties to submit the dispute to judicial settlement or
arbitration.
"If the parties cannot agree to do so, the Council shall again
take the dispute under consideration, and, if it reaches a report
which is unanimously agreed to by the Members thereof other than
the representatives of the parties to the dispute, the Members of
the League agree to accept the recommendations contained in the
report.
"If the Council fails to reach a report which is concurred in by
all the members other than the representatives of the parties to
the dispute, and if the parties are still unable to agree to refer
the dispute to arbitration, the Council is empowered to refer the
dispute to arbitration on their behalf. One-half of the members
of the tribunal, excluding the president, shall be appointed by
the Council, after consultation with one party to the dispute, and
the other half after consultation with the other party to the
dispute. The president shall be appointed by the Council after
consultation with the Permanent Court of International Justice if
in session, or, if not in session, with the members of its chamber
of summary jurisdiction.
"The Members of the League agree that they will comply with the
{237}
recommendations contained in any award of the Arbitration Tribunal
set up by the Council as above.
"In the event of any failure to comply with the recommendations of
a report concurred in by all the Members of the Council other than
the parties to the dispute or in any award of an arbitration
tribunal set up by the Council as above, the Council shall exert
all its influence to secure compliance therewith. If such failure
to carry out the recommendations is accompanied by any resort to
war, the sanctions provided for in article 16, interpreted as
provided in this Protocol, shall be applied."
44. The British Delegate explained that the willingness of Governments
to amend the Covenant must be clearly expressed in the Protocol. In no
other way could the danger of creating within the League an inner ring
of Powers, bound towards each other by ties and obligations more close
than those binding the ordinary members of the League, be avoided. The
drafting of amendments to the Covenant was, however, a technical
matter, and time was short. He therefore suggested that the Council
should be asked to set up a committee of experts to draft the
amendments to the Covenant contemplated by the Protocol.
45. These proposals provided the bases of articles 1, 3 and 4 of the
Protocol and of paragraph 3 of the Assembly Resolution of the 2nd
October. The bases of articles 2 and 5 had already been established.
Article 10 was beginning to take shape in new drafts in substitution
for Dr. Benes's definition of an aggressor. On the 21st September
these articles were provisionally adopted by the joint drafting
committee of the First and Third Committees. At this stage, therefore,
for the first time, the substance of a workable text on the subjects
referred to the First Committee began to emerge from the shadow of
discussion.
46. Throughout this period, however, the negotiations had been carried
on entirely in the sub-committee in secret sessions. Although the
closest possible touch had been kept by the British Delegation with the
Dominion and Indian Delegations, the British representative felt
himself to be in a position {238} of great responsibility in carrying
on the work in the sub-committee. He felt that a stage had been
reached where a wider consultation was necessary, as, with the
exception of the Attorney-General of the Irish Free State, who was
unfortunately obliged to return to Ireland about this date, he was the
only British member. He proposed, therefore, that the work of the
sub-committee should be reported to the full Committee on which all the
Dominion and Indian Delegations were represented. The full Committee
thereupon met on the 24th September, and then and at further meetings
held on the 25th, 26th, 27th and 28th September, the articles of the
Protocol were fully discussed in public sessions. The articles of the
Protocol under consideration thus took their shape in the
sub-committee, they were then submitted to the Joint Drafting Committee
representing the First and Third Committees, and were then finally
approved after public discussions in Committee No. 1. Here, then, it
will be convenient to deal with the purpose and evolution of each
article separately.
_The Preamble._
47. The draft of the Preamble, as revised by the Joint Drafting
Committee of the First and Third Committees, was adopted at a plenary
session of the First Committee on the 27th September. The Lithuanian
Delegate made a reservation that the reference to territorial security
in no way prejudiced existing disputes between States signing the
Protocol. The Portuguese Delegate proposed an amendment to substitute
for the word "territories" in the first sentence, the phrase
"territories under the sovereignty of States." The object was to make
it clear that oversea territories under the sovereignty of a State were
not excluded, but the British representative reminded the committee of
the nature of the varied character of the territories of the British
Empire, and said that if one class of oversea territories were
mentioned, all must be mentioned. The amendment was rejected.
{239}
_Article 1._
48. Article 1 was designed to ensure that the universality of the
League should be maintained even if the Protocol comes into force. For
a while there must no doubt be a dual régime. States signatory to the
Protocol will be bound by its terms, and the régime of the Covenant
will continue to exist and to be binding upon States members of the
League. This will, however, not last, as the principal provisions of
the Protocol will be transformed into amendments to the Covenant.
_Article 2._
49. Article 2 was intended to make all aggressive war illegal.
Exceptions were, however, made to safeguard (1) the right of a State to
fight in self-defence, and (2) the position of a State acting in
accordance with the provisions of the Covenant or the Protocol. A
proposal, strongly urged, to substitute the words "resort to force" for
the words "resort to war" was rejected.
_Article 3._
50. Article 3 provides for the compulsory recognition of the
jurisdiction of the Permanent Court. The Joint Drafting Committee
proposed to remove this article from the Protocol, as certain
Delegations felt it went beyond the Assembly Resolution. The British
Empire Delegation feared that this might result in the separation of
the three principles--arbitration, security and disarmament. At the
suggestion of the British representative, therefore, the article was
retained. As a result of the discussions on this matter, it was
generally agreed that the power to make reservations to article 36 of
the Permanent Court Statute was much wider than had been at first
believed. It was understood that the proposed British reservation was
within the limits admissible.
_Article 4._
51. Article 4 was designed to extend the system of {240} arbitration
contained in the Covenant and to fill the existing gap in article 15 of
the Covenant, by which the parties to a dispute recover their liberty
of action and are entitled to resort to war if the Members of the
Council are unable to agree upon a unanimous report. In the
sub-committee a strong feeling manifested itself against unanimous
decisions of the Council being binding in cases where one party to a
dispute, but not both, desired arbitration. Certain of the smaller
States, in particular, felt that such a system gave too much power to
the Council, which was already regarded as a body which expressed only
the will of the great Powers.
52. Paragraphs 2 (_a_) and (_b_) of article 4 were drafted to avoid
this difficulty. Arbitration is to be compulsory at the request of one
of the parties, and the Council is given power to appoint the arbitral
body if the parties cannot agree as to its constitution. A unanimous
decision of the Council is only to be binding where none of the parties
ask for arbitration. If, therefore, any party wishes to avoid a
decision by the Council, it has only to ask for arbitration. For
similar reasons, the words "accepted by one of the parties" were added
after the words "decision of the Council" in paragraph 5.
53. Discussions in the sub-committee revealed a divergence of view as
to whether or not sanctions should be applied in the event of passive
resistance to the award of the Arbitral Commission. It was finally
agreed that the provision contained at the end of article 13 of the
Covenant would be sufficient to meet a case of passive resistance and
that the sanctions of article 16 should only be applied when such
resistance was accompanied by a resort to war (_vide_ paragraph 6 of
article 4).
54. At the request of the British representative, paragraph 7 was added
to ensure that reservations, similar to that which the British
Delegation considered that it would be obliged to make if the British
Empire accepted article 36 of the Statute of the Permanent Court, would
also exist in the case of the new system of compulsory arbitration.
{241}
_Article 5._
55. Article 5 was inserted as the result of a unanimous decision of the
sub-committee to leave untouched paragraph 8 of article 15 of the
Covenant, which safeguards the rights of States Members in regard to
matters of domestic jurisdiction. The whole British Empire Delegation
held the view that when the Arbitration Commissions were faced with
such questions, they should be bound to refer them to the Permanent
Court, and that the opinion of the Court should be binding. As the
Permanent Court itself is bound to apply international law, and
paragraph 8 of article 15 refers to questions which by _international
law_ are solely within the domestic jurisdiction of the State
concerned, this provision ensures that a uniform rule will be applied
by the Council, the Permanent Court and the arbitral bodies to be set
up under the new system.
56. The last sentence of article 5 was added to meet certain
difficulties raised by the Japanese Delegation. They pointed out that
the second gap in the Covenant, referred to by the French Delegation
during the general discussion, had not been filled. On the 24th
September, they accordingly proposed an amendment to article 5, which
appeared to have the effect of giving the Council power, in cases
relating to domestic jurisdiction, to recommend the parties to adopt
some solution which would ensure a pacific settlement of the dispute.
After the discussion in the sub-committee, the Japanese Delegation
modified this proposal and suggested that the following words be added
as the final paragraph of article 5:--
"The above provisions do not prejudice the duty of the Council to
endeavour to bring the parties to an agreement so as to ensure
the maintenance of peace and a good understanding between nations."
This proposal came up before the plenary session of the First Committee
on the 25th September. The British Delegation asked for a postponement
of the discussion. Immediate steps were {242} taken to consult the
Dominion and Indian Delegations, and in the subsequent negotiations the
closest co-operation with them was maintained.
57. It transpired that the Japanese Delegation, if they failed to
secure acceptance of this amendment to article 5, intended to press for
the exclusion from article 10 of the sentence at the end of paragraph 2
(1), which included in the definition of an "aggressor" a State which
resorted to war and disregarded a unanimous report of the Council or a
judicial sentence or an arbitral award recognising that the dispute
arose out of a matter within the domestic jurisdiction of the other
State concerned. They pointed out that it was unjust that in such
cases the League, while refusing pacific means of settlement to an
injured State, should denounce that State as an aggressor if it took
steps to defend its legitimate interests by force.
58. The possible effect of this alternative amendment was regarded by
many Delegations with great concern. It would have suggested the
legitimacy of a resort to war in connection with a dispute arising out
of some domestic matter as to which the Council could give no help and
make no recommendation for its solution.
59. In these circumstances the British Empire Delegation was agreed
that the best course was to endeavour to find a solution by enlarging
article 19 of the Protocol, so as to make it clear that the existing
power of the Council, under article 11 of the Covenant, of endeavouring
to achieve a pacific settlement in any case where the peace of the
world was endangered, was not prejudiced by the provisions of the
Protocol. Though the discussions of the matter remained very friendly
in tone this proposal did not prove acceptable to the Japanese
Delegation. Accordingly, when the amendment came before the plenary
meeting of the First Committee on the 28th September, the Japanese
Delegation withdrew their amendment to article 5 and proposed the
amendment to article 10. At the suggestion of the French Delegate the
question was referred back to the sub-committee.
{243}
60. Late on the 29th September the basis of solution was found. It was
immediately submitted to the representatives of the Dominions and
India, and was fully considered by them at two further meetings on the
following day. After slight modifications the text of two amendments
proved acceptable to the British Empire Delegation, and after being
accepted by the Japanese and French Delegations, these amendments were
adopted by the First Committee. They involved the addition to the last
sentence of article 5 of the words "this decision shall not prevent
consideration of the situation by the Council or the Assembly under
article 11 of the Covenant," and the addition at the end of paragraph 2
(1) of article 10 of the words "nevertheless in the last case the State
shall only be presumed to be an aggressor if it has not previously
submitted the question to the Council or the Assembly in accordance
with article 11 of the Covenant."
61. In the opinion of the British Empire Delegation these amendments
conferred no new powers or functions on either the Council or the
Assembly. They merely served to make clear the relationship between
paragraph 8 of article 15 and article 11 of the Covenant. Article 11
of the Covenant only operates in time of war or threat of war, and it
confers no right on the Council or the Assembly to impose a solution of
a dispute without the consent of the parties. The Council or the
Assembly may mediate and conciliate, but they cannot make
recommendations which are binding under paragraph 6 of article 15 of
the Covenant. When these amendments were adopted at the final plenary
meeting of the First Committee on the 30th September, the British
representative made a statement on the above lines. This
interpretation proved generally acceptable, and it was agreed to
incorporate it in the report to be submitted to the Assembly.
62. At the final plenary meeting of the First Committee the British
representative drew attention to the difficulty in which many
Delegations were placed, in that they had had no {244} opportunity to
consult their Governments in regard to these amendments. The
Delegations of Australia and several other countries thereupon stated
that, though they accepted the texts, they could not commit their
Governments in any way.
_Article 6._
63. Article 6. When the system of compulsory arbitration, contained in
article 4, had been established, the British representative pointed out
that under paragraphs 9 and 10 of article 15 of the Covenant a dispute
might still be referred to the Assembly. Article 6 was therefore
drafted to ensure that the provisions referring to the actions and
powers of the Council should apply to the Assembly under the new
system. After considerable discussion it was decided to reserve
questions of procedure to the Council as being a more suitable body.
_Article 10._
64. Article 10, which contains the definition of an aggressor, provided
one of the most difficult tasks of the First Committee. By the 23rd
September a number of drafts had been considered but no satisfactory
text had been found. The original idea was that it should be the duty
of the Council to determine the aggressor, but the question then arose
as to whether, in making this decision, the Council should act
unanimously or by majority vote. Adherence to the unanimity rule would
have made it possible for one State to prevent a decision being
reached. Procedure by a majority vote might have resulted in a State
being obliged to apply sanctions against its own judgment. The only
way out of this difficulty was to avoid a decision by the Council at
all, and to make the test of aggression automatic, when once certain
conditions had been found to obtain. This is achieved by establishing
a presumption which is to hold good until the Council has made a
unanimous decision to the contrary. If the presumption stands it is
considered sufficient to justify the application of sanctions. Even
then it was thought that there would have to be something in the nature
of a {245} "declaration of aggression" in order to initiate the
enforcement of sanctions, and that this declaration would have to be
made by unanimity. Objections were raised to this, but these
objections were finally satisfied by the insertion of paragraph 3,
according to which the Council, if it cannot at once determine the
aggressor is bound, as a matter of course, to enjoin an armistice upon
the belligerents.
65. The Japanese Delegation were opposed to any presumption of
aggression arising against a state which was involved in a dispute
covered by paragraph 8 of article 15 of the Covenant, and found as the
result that, though it had submitted the dispute to the Council, the
Council were unable to make any recommendations on the subject. To
meet this view, the amendment previously referred to was made to
article 5, and the words "nevertheless in the last case the State shall
only be presumed to be an aggressor if it has not previously submitted
the question to the Council or the Assembly in accordance with article
11 of the Covenant" were added to paragraph 2 (1) of article 10. In
the opinion of the British Delegation, this amendment does not affect
paragraph 3 of article 10. If a resort to war occurs, and the Council
cannot determine the aggressor, it is still bound to impose an
armistice upon the belligerents.
66. To the final paragraph of article 10 the words "and any signatory
State thus called upon shall thereupon be entitled to exercise the
rights of a belligerent" were added at the suggestion of the British
representative. This addition was made to safeguard the position of a
State which, though no party to the dispute, joined in coercive
measures to uphold the Covenant of the League and in so doing took
forcible measures against the persons or the property of nationals of
another State.
_Article 16._
67. The relations between States signatory to the Protocol and States
non-signatory and non-members of the League presented a problem the
solution of which required great care. {246} The various aspects of
the question were thoroughly examined, and it was finally agreed that
it would be sufficient to bring the principle contained in article 17
of the Covenant into harmony with the provisions of the Protocol.
Sanctions can only be imposed on a State which is not a Member of the
League if it refuses to accept the conditions and obligations of the
Protocol when invited to do so, and resorts to war against a signatory
State.
68. The question was raised of the relationship between States Members
of the League signatory to the Protocol and non-signatory States
Members. After careful examination, it was generally agreed that no
special arrangement was necessary. The Members of the League are bound
_inter se_ by the Covenant and non-signatory Members are entitled, if
they wish, to prefer the procedure laid down in the Covenant to the new
procedure of the Protocol.
_Article 18._
69. Article 18 was inserted to satisfy apprehensions which had been
expressed in certain quarters. The British Delegation were not
convinced of its necessity, but saw no reason to object to it.
_Article 19._
70. Article 19 was inserted as a saving clause. It emphasises the
intention to preserve the Covenant as the principal document governing
the relations between States Members of the League. The relations
between signatories and non-signatories to the Protocol are still to be
governed by the Covenant. The Covenant is to stand, but it is to be
enriched by the principal provisions of the Protocol. The amended
Covenant is intended ultimately to take the place of the separate
régime of the Protocol.
_Resolution No. 1._
71. It had been originally suggested that the provisions of {247} the
Protocol should be embodied in the form of resolutions to be submitted
for adoption by the Assembly. In view, however, of the fact that
adoption of such resolutions by the Assembly might be held to commit
the Governments there represented to the acceptance of its provisions,
and in view of the difficulty which Delegations found in consulting
their Governments, this proposal was found to be impracticable. It was
thereupon decided that the Protocol should be drawn up as a separate
instrument, and that its acceptance should be recommended by the
Assembly to all States Members of the League.
72. The draft of a resolution on these lines, which had been drawn up
by the British representative, was discussed by the First Committee on
the 27th September. Paragraph 1 recommends the acceptance of the
Protocol. Paragraph 2 provides that the Protocol shall be open
immediately for signature for those representatives who were already in
a position to sign. This was added in view of the fact that the French
and several other Delegations had announced their intention to sign the
Protocol before leaving Geneva. Paragraph 3 was inserted because it
was felt that the drafting of amendments to the Covenant was too
technical a matter to be done hastily.
73. The remaining paragraphs of the resolution relate to the proposed
Disarmament Conference which was dealt with by the Third Committee.
The resolution was unanimously adopted by the Assembly on the 2nd
October.
_Resolution No. 2._
74. This resolution recommends the acceptance of the obligatory
jurisdiction of the Permanent Court of International Justice at The
Hague by all Members of the League. The discussions regarding the
special Protocol opened for signature in virtue of article 36,
paragraph 2, of the Statute of the Permanent Court, had revealed that
the power to make reservations was wider than had been at first
thought. It was therefore decided that no new Protocol was required,
but that the power to make {248} reservations should be clearly
recognised in the resolution of the Assembly.
_M. Politis's Report._
75. M. Politis's draft report on the work of the First Committee was
presented to the Committee on the 28th September, and the discussion
upon it lasted all day. This draft, which was very ably drawn up, gave
a remarkably clear and adequate account of the achievement of the First
Committee.
76. Some criticism was made by the representative of Hungary and others
of a tendency in the report to give peace a secondary position to that
of justice in the predominating idea of arbitration. As a result, the
offending passages were redrafted.
77. In its final form M. Politis's report was incorporated in the
general report submitted to the Fifth Assembly by the First and Third
Committees. This general report[2] was adopted unanimously by the
Assembly on the 2nd October, and it can thus be regarded as the
official document containing the views of the Members of the League in
regard to the interpretation of the Protocol.
III.--WORK OF THE THIRD COMMITTEE.
78. The Third Committee began its deliberations on the Assembly
resolution on arbitration, security and disarmament on the 9th
September, under the presidency of M. Duca (Roumania) (subsequently
replaced by M. Politis [Greece]), and the proceedings opened with a
general discussion, which was continued until the 13th. Lord Parmoor
and Mr. Henderson represented the British Empire.
79. After the method of procedure had been settled, a statement was
made expressing the standpoint of the British Delegation on the
questions of arbitration under the three heads of arbitration, court
decisions and conciliation, and the views then expressed were
maintained at the subsequent meetings. A short {249} reference was
made to the question of sanctions, but any detail was avoided in order
to leave room for free discussion with the members of the French
Delegation. The note of the British Government on the Draft Treaty of
Mutual Assistance was referred to as expressing the final view and not
requiring any further comment.
80. Most of the speakers devoted some time to a statement of the views
of their Governments on the Draft Treaty of Mutual Assistance, against
which the main objections urged were the uncertainty in regard to the
definition of aggression, the too wide discretion and powers conferred
upon the Council and the evils attendant on the system of
"complementary agreements" sanctioned by the Treaty. The first defect
might now be remedied by the extension of the system of arbitration,
which would simplify the definition of aggression. As regards the
"complementary agreements," even those who recognized their harmful
possibilities were compelled to admit that they could not be abolished
or prevented, and that their power for evil might be lessened if they
were controlled and brought within a general scheme of mutual
assistance under the League.
81. All the speakers were in substance agreed that the Covenant itself
afforded the best basis for any scheme of mutual assistance; that it
needed only to be developed and carried to its logical conclusion in
order that it might provide an adequate basis of security.
82. In summing up the debate the President observed that there appeared
to be general agreement on the interdependence of the three problems of
arbitration, security and disarmament, and on the point that a complete
system could be evolved from the Covenant itself. Everyone was
prepared to accept the principle of economic and financial sanctions,
though some difference might exist on the subject of military
sanctions. Little had been said about disarmament, which could only
follow as a consequence of the solution of the twin problems of
arbitration and security.
{250}
83. It was then agreed, on the morning of the 13th September, to
appoint a sub-committee of representatives of twelve Delegations to
formulate concrete proposals.
84. The sub-committee, known as the Fourth Sub-Committee of the Third
Committee, was composed as follows:--
Lord Parmoor or Mr. Henderson (British Empire).
M. Paul-Boncour (France).
M. Schanzer (Italy).
M. Branting (Sweden).
M. Benes (Czechoslovakia).
M. Villegas (Chile).
M. Kalfov (Bulgaria).
M. Poullet (Belgium).
M. Titulesco (Roumania).
Mr. Matsuda (Japan).
M. Lange (Norway).
M. Skrzynski (Poland).
85. The sub-committee met for the first time on the afternoon of the
13th September, under the presidency of Dr. Benes. The first meeting
was occupied by a discussion on procedure. In the first instance, it
was proposed to appoint a drafting committee of three members to draw
up proposals, keeping in close touch with a similar committee to be
appointed by the First Committee, but this idea was subsequently
abandoned, and the President was requested to draw up the outline of a
scheme, to be submitted to the sub-committee, if possible, on the 15th
September. This the President undertook to do, but he was only able to
submit his proposals for the first time on the 16th September. The
delay was due mainly to the necessity of consulting with
representatives of the First Committee and with certain Delegations.
In particular, meetings were held on the 15th September between
representatives of the French and British Delegations who went
carefully through the scheme and reached a preliminary agreement on a
number of points of principle. This agreement greatly facilitated the
eventual completion of the work.
{251}
86. These proposals were in the form of a draft Protocol, of which
articles 1, 2, 3 and 5 concerned the First Committee, and have already
been dealt with in the preceding section of this report. The remaining
articles, as originally proposed, may be summarised as follows:--
87. _Article_ 4.--The Council or the Permanent Court may appoint
International Control Commissions, composed of civilian and military
experts, to ensure that during the course of the arbitral procedure
none of the parties makes preparations for economic or military
mobilisation.
88. _Article_ 6 recommends the establishment of demilitarised zones and
their control, if desired, by the League of Nations.
89. _Article_ 7.--As soon as the declaration of aggression has been
made, the obligations of the signatories in regard to the sanctions of
all kinds in article 16, paragraphs 1 and 2, of the Covenant will
immediately become operative against the aggressor. These obligations
to be interpreted as obliging each of the Members of the League to
co-operate loyally and effectively in support of the Covenant of the
League and in resistance to any act of aggression.
90. In accordance with article 16 of the Covenant the signatories
undertake, individually or collectively, to come to the assistance of
the State attacked or threatened, and to give each other mutual support
by means of facilities and reciprocal exchanges as regards supplies of
raw materials and food-stuffs of every kind, openings of credits,
transports, transit, and for this purpose to ensure the safety of the
land and sea communications of the attacked or threatened State.
91. If both parties to the dispute are declared aggressors according to
the above provisions, the economic sanctions to be applied to both of
them.
92. _Article_ 7A.--The Council of the League of Nations to instruct the
Economic and Financial Committees, Temporary Mixed Commission and
Permanent Advisory Commission to draw up (1) plans of action for
establishing the blockade of {252} the aggressor State, and (2) plans
of economic and financial co-operation between the State attacked and
the different States assisting it.
93. _Article_ 8.--The Council to be entitled to accept individual or
collective undertakings entered into by States, determining in advance
the military forces which they would immediately place at the Council's
disposal in order to carry out the measures decided upon, in accordance
with the preceding articles.
94. When the aggressor has been designated, the signatories may, in
accordance with undertakings previously entered into, place in the
field the whole, or such proportion as they may consider necessary, of
their military forces against the aggressor.
95. _Article_ 8A.--In view of article 10 of the Covenant, the above
sanctions must not include the violation of the political or
territorial independence of the aggressor.
96. _Article_ 9.--The signatories to take part as soon as possible in
an International Conference for the Reduction of Armaments under the
auspices of the League. The Council to draw up the programme for this
Conference.
97. If, within a time limit of (Transcriber's note: blank space in
source) after the coming into force of the Protocol, the Conference has
not met, or the scheme for the reduction of armaments drawn up by it
has not been adopted and carried out, the Council may record the fact,
and each signatory shall regain its freedom of action.
98. If, during the time limit specified above, a dispute arises, the
provisions in the Protocol to be applicable in full.
99. _Supplementary Clause_ (to be inserted in article 9).--The
conditions in which the Council may declare that the scheme of the
International Conference has not been carried out, shall be defined by
the Conference itself.
100. _Article_ 10.--Differences relating to the carrying out or
interpretation of the Protocol to be submitted to the Permanent Court
of International Justice.
101. _Article_ 11.--The Protocol to be open for signature by {253} all
States, to be ratified, and the ratifications to be deposited with the
League. The Protocol to come into force between the signatories
ratifying it, as from the date of ratification.
102. The sub-committee held eight meetings in all, finishing its work
on the 22nd September. The articles were not discussed in their
numerical order, and a discussion of one article was often adjourned
while the examination of another article was begun. As it is not
attempted here to give a full summary of the discussions, it will
perhaps be convenient to take the articles in order and show what
modifications were introduced.
103. _Article_ 4.--Objection was raised to this article, mainly on the
ground that it gave the Council or the Permanent Court too wide powers
of interference, and introduced the idea of a "super-State." After
consultation with other Delegations, the British Delegation produced an
alternative draft which was adopted, and which was substantially
embodied in the eventual Protocol itself (becoming article 7). The
only essential difference between this draft and the eventual text was
that the former provided, in paragraph 2, that the investigations
should be carried out "by the organisation set up by the Conference for
the Reduction of Armaments to ensure respect for the decisions of that
Conference.
104. _Article_ 6.--Words were inserted to the effect that demilitarised
zones were recommended "as a means of avoiding violations of the
present Protocol." They were to be placed under the supervision of the
Council at the request "and at the expense" of one or more of the
conterminous States.
105. _Article_ 7.--There was considerable discussion on the first
paragraph, and some demand for a distinction to be drawn, as in the
Covenant, between economic and financial sanctions on the one hand, and
military sanctions on the other. It was, however, explained that the
proposed definition of the aggressor had produced a clearer situation,
in which there was no reason why the application of sanctions of all
kinds under article 16 of the Covenant should not be justified. It was
pointed out that the {254} wording of this first paragraph was
illogical. The "obligations" could not "become operative against an
aggressor." Accordingly, it was agreed to substitute the words "the
obligations will immediately come into force in order that the
sanctions provided may immediately become operative." The paragraph
was then passed with the above amendment.
106. Exception was taken to the words in the third paragraph "undertake
individually or collectively to come to the assistance." It might
prove difficult to evolve collective plans, and it was agreed, on the
proposal of the British Delegate, to substitute the words "give a joint
and several undertaking to."
107. In the same paragraph the use of the expression "to ensure the
safety of the land and sea communications of the attacked or threatened
State" was questioned in the first place, because it seemed that it
might imply naval or military operations. In reply, it was pointed out
that the words in the same sentence "for this purpose" showed that this
paragraph related solely to economic and financial sanctions. In the
second place the word "ensure" was objected to, on the score that to
undertake to ensure communications might be to undertake an
impossibility. Finally, the words "take measures to preserve the
safety of communications" were substituted. It was further pointed out
that these provisions were to be applied to protect an attacked or
threatened State and that a similar distinction was expressly contained
in the Covenant.
108. _Article_ 7A.--The British Delegation desired a redraft of this
article, taking exception in particular to sub-paragraph (1), in which
the word "blockade" seemed to suggest belligerent naval action. They
at first suggested omitting all words after "Council of the League of
Nations" and substituting "shall, as soon as possible after the
Protocol has been ratified, take steps to ascertain from each of the
signatories what organisation or legislation is necessary to give
effect to the economic and financial sanctions." An alternative
suggestion from another quarter was to substitute the words "putting
into force the economic and {255} financial sanctions against" for the
words "establishing the blockade of" in sub-paragraph (1). It was
agreed to combine both amendments--to adopt the British text above, and
to begin a second paragraph with the words "When in possession of this
information the Council shall draw up, through its competent organs:
(1) plans of action for the application of the economic and financial
sanctions of article 16 of the Covenant against an aggressor State," &c.
109. Later, the British Delegation proposed to redraft the first
paragraph in the form in which it finally appears in the Protocol
(having become article 12), to delete the remainder, and to substitute
"It shall communicate this report to the members of the League and to
the other signatories." The redraft of the first paragraph was
accepted, but it was decided to allow the second paragraph to stand, as
amended above.
110. _Article_ 8.--The British Delegation had objections to raise
against both paragraphs of this article. In the first paragraph they
objected to the words "place at the Council's disposal," and the second
paragraph they regarded as an attempt to revert to what was the
operative principle of the Draft Treaty of Mutual Assistance.
111. They suggested as an alternative text:--
"Having regard to the fact that military sanctions are foreseen in
article 16 of the Covenant, the Council may receive undertakings
from States fixing in advance the military forces which they would
be willing to employ against a Member of the League which was
declared to be an aggressor.
"In view of the right of Members of the League to enter into such
arrangements with the Council, no agreement shall in future be
concluded between States Members of the League, providing for
military action to be taken by them."
112. It became evident that the sub-committee could not be induced to
accept the second paragraph of this alternative text, and it was
accordingly withdrawn. Exception was also taken {256} to the words in
the first paragraph, "against a Member of the League," &c., and it was
agreed to substitute the words, "to ensure the fulfilment of the
obligations in regard to sanctions which result from the Covenant and
the present Protocol."
113. The French Delegation then proposed that the article should read:--
"In view of the contingent military, naval and air sanctions
provided for in article 16 of the Covenant, and article 7 of the
present Protocol, the Council shall be entitled to receive
undertakings entered into by States determining in advance the
military, naval and air forces which they would bring into
action immediately to ensure the fulfilment of the obligations
in regard to sanctions which result from the Covenant and the
present Protocol.
"When the aggressor is designated, the signatory States may,
moreover, place in the field, in accordance with agreements
previously entered into, the whole or such part of their
military, naval and air forces as they may consider necessary
for the assistance of a State which shall have been the victim
of aggression.
"The obligations of the second paragraph shall be duly
registered and published by the League of Nations, and shall
remain open for adherence by any State Member of the League
which so desires."
114. It was the right of States, as the matter then stood, to enter
into special agreements with one another for determining in advance the
military, naval and air forces which they would bring to the assistance
of one another under the conditions indicated. Under the Protocol,
these special agreements would only come into force when the Council
had decided which State is the aggressor: they would simply provide
means for applying rapidly the sanctions prescribed in the Covenant and
the Protocol.
115. Before, however, agreeing to this text a statement was made on
behalf of the British Delegation, expressing regret that the
sub-committee had not seen its way to make the Protocol an instrument
whereby the League would only act as a whole. It was, however,
recognised that the last paragraph introduced {257} an improvement, as,
if separate agreements must exist, it would be better that they should
be registered with the League. "But that does not alter the fact that
you are making provision on the face of a new document for that which
has been turned down in connection with the Draft Treaty of Mutual
Assistance." Further opposition to the draft article was not pressed,
but the British Delegation made known their desire that words should be
recorded expressing regret that the League was not to act as a whole,
and to set its face "like flint against anything like the old balance
of power by allowing these regional pacts to go on under this new
instrument." The above text was then adopted.
116. _Article_ 8A.--The British Delegation proposed that the article
should read: "Shall not affect the territorial integrity or political
independence of the aggressor State." This was agreed to, and it was
also decided to prefix a paragraph relating to the costs of military,
naval or air operations, similar to article 10 of the Draft Treaty of
Mutual Assistance.
117. _Article_ 9.--Objection was raised by the British Delegation to
the last paragraph of article 9, and they moved that the following be
substituted:--
"The provisions of the present Protocol in regard to arbitration
and sanctions shall come into force when the scheme for the
reduction of armaments, drawn up by the International Conference,
has been effectively carried out in accordance with the
conditions fixed by the Conference itself."
118. The French Delegation maintained strongly that the Protocol must
be brought into operation before the International Conference could
meet. The British Delegation offered a compromise with the suggestion
that their Government might sign the Protocol, and ask Parliament to
approve it before the Conference met. But preparatory arrangements for
the Conference should go on concurrently. Directly agreement was
reached by the Conference, ratifications could 'be deposited. As this
failed to meet the views of the French Delegation, the British {258}
Delegation made a final proposal whereby endeavours should be made to
secure ratification and deposit of ratifications before the Conference
met, provided the Protocol itself contained a provision to the effect
that it should only become operative when the International Conference
reached a conclusion. The French Delegation indicated their
willingness in principle to accept this, but wished to consider an
actual text.
119. At the next meeting the Chairman submitted the following version:--
"The undersigned Members of the League of Nations undertake to
participate in an International Conference for the Reduction of
Armaments which shall be convened by the Council of the League
and shall meet at Geneva on Monday, the 15th June, 1925. States
not Members of the League of Nations shall be invited to this
Conference.
"The ratifications of the present Protocol shall be deposited
with the Secretariat of the League of Nations at the latest by
the 1st May, 1925. If at least fifteen Members of the League,
of which four are permanently represented on the Council, have
not deposited their ratification by the 1st, May 1925, the
Secretary-General of the League shall cancel the invitations.
"The entry into force of the present Protocol shall be
suspended until a plan for the reduction of armaments has been
adopted by the Conference.
"With a view to the summoning of the latter, the Council,
taking into account the undertakings contained in articles 7
and 8 of the present Protocol, will prepare a general programme
for the reduction of armaments which will be placed at the
disposal of the Conference.
"If, within a period of (Transcriber's note: blank space in source)
after the adoption of the plan for the reduction of armaments,
that plan has not been carried out, the Council shall make a
declaration to that effect; this declaration shall under the
present Protocol be null and void.
"The grounds on which the Council may declare that the plan drawn
up by the International Conference for the Reduction of Armaments
has not been carried out, and that in consequence the present
{259}
rendered null and void, shall be laid down by the Conference
itself.
"A signatory State which, after the expiration of the period
fixed above, fails to comply with the plan adopted by the
Conference, shall not be admitted to benefit by the application
of sanctions provided in the present Protocol."
120. The sub-committee adopted a proposal to add to the third paragraph
"and communicated to Governments two months previously." In view of
representations made by the Japanese Delegation, this was subsequently
altered to "and communicated to Governments at the earliest possible
date, and at the latest three months before the Conference meets."
121. The Swedish Delegation proposed that a clause should be added to
the effect that "the present Protocol in no way effects obligations
arising out of the Covenant." It was agreed that a clause to this
effect could be either added or inserted as a separate article. The
latter alternative was eventually adopted (see article 19 of the final
Protocol).
122. After some discussion, the number of ratifications required in
paragraph 2 of this article was finally fixed as now provided in the
Protocol (see paragraph 4 of article 21 of the final Protocol).
(N. B.--The Joint Drafting Committee of the First and Third Committees
made a final revise of the whole text, with a view to checking the
wording of the various articles, their logical arrangement, &c. In the
course of this work they removed paragraphs 3, 5, 6 and 7 of this
article and incorporated them in the "ratification" article of the
final Protocol--No. 21.)
123. _Article_ 10.--The British Delegation proposed the suppression of
the words "carrying out." It was decided to consult the First
Committee on this point. (The words are omitted in the final Protocol.)
124. _Article_ 11.--In view of the new text of article 9, it was
decided to omit the second paragraph of this article.
125. This concluded the work of the sub-committee, and {260} the text
of the above articles of the Protocol were submitted to the Third
Committee on the 22nd September.
Dr. Benes, as chairman and _rapporteur_ of the sub-committee, made a
general report on the sub-committee's work, and it was then agreed to
discuss the articles seriatim.
126. On _Article_ 4 a debate ensued on an objection raised by the
Italian Delegation to the proposal that investigations should be
carried out by the organisation to be set up by the International
Conference. In the first place, they disliked the idea of a permanent
organ of investigation--they considered that, if an investigation were
necessary, this should be carried out by a special body appointed for
the purpose if and when the occasion arose. In the second place, they
suggested that it would be improper to anticipate, in the Protocol, any
decision that the International Conference might take. The British
Delegation explained that this proposal had been inserted in their
draft merely as a matter of convenience: thinking that it would be
necessary for the Conference to appoint some body to ensure that the
decisions of the Conference were carried out, it had seemed to them
that it would be only duplicating labour for any other body to be set
up by the Council to carry out these special investigations. The
Italian Delegation finally suggested that the text should run, "such
enquiries and investigations shall be carried out with the utmost
possible despatch, and the signatory States undertake to afford every
facility for carrying them out." This was accepted, with the
consequential amendment to the fourth paragraph, which should now
begin: "If, as a result of these enquiries and investigations, any
infraction," &c. The article thus adopted became article 7 of the
final Protocol.
127. _Articles_ 5 _and_ 6 were adopted without modification, becoming
articles 10 and 9 respectively of the final Protocol.
128. _Article_ 7.--Owing to a change introduced by the First Committee
in the text of article 5, in consequence of which it was no longer
incumbent on the Council to make a declaration of aggression, it became
necessary to alter the wording of the beginning of article 7. It was
decided that this should run, "As {261} soon as the Council has called
upon the signatory States to apply sanctions against the aggressor
State, in accordance with article 6, the obligations," &c.
129. In paragraph 2 the words "signatory States" were substituted for
"Members of the League."
130. The article as a whole came in for some criticism, mainly from the
Netherlands and Scandinavian Delegations. Certain remarks made by Dr.
Benes in introducing the text to the Third Committee had caused
misgivings to those Delegations, who wished to be assured that the
obligations in this article did not go beyond those of article 16 of
the Covenant. They observed, as had members of the sub-committee, that
the distinction drawn in the Covenant between economic and financial
sanctions on the one hand, and military, naval and aerial sanctions on
the other, had disappeared from the present text, and they sought a
clear declaration that no fresh obligations were incurred in regard to
the latter category, and that each Member of the League retained the
right to decide its own course of action. In the course of his reply
Dr. Benes said, "the real application of the sanctions will always be
within the province of the Government themselves, and true co-operation
will always take place by direct contract between the Governments."
The Danish Delegation were not entirely satisfied, and moved to alter
the second paragraph so as to make it read, "co-operate loyally and
effectively in the carrying out of the obligations provided for in
article 16 of the Covenant." After consultation with the _rapporteur_,
they abandoned this amendment, and declared themselves satisfied with
the addition to paragraph 2 of the words, "in the degree which its
geographical position and its particular situation as regards armaments
allow." As thus amended, the article was adopted, and became article
11 of the final Protocol.
131. _Article_ 7A was adopted without amendment, becoming article 12 of
the final Protocol.
132. _Article_ 8.--The change, referred to above, in the text of
article 5, rendered necessary an alteration in the wording of the
second paragraph of this article, which it was agreed should {262}
begin: "Furthermore, as soon as the Council has called upon the
signatory States to apply sanctions, as provided," &c.
133. In the same paragraph it was decided to omit the words, "the whole
or such part of," and make it read, "bring to the assistance of a
particular State, which is the victim of aggression, their military,
naval and air forces." With these modifications, the article was
adopted, and became article 13 of the final Protocol.
134. _Article_ 8A was adopted, and figures as article 15 in the final
Protocol. It was suggested that an addition should be made to this
article to the effect that "the Council shall alone be competent to
declare that the application of sanctions shall cease and normal
conditions be re-established." The Committee decided that this should
be inserted as a separate article, and it appears in the final Protocol
as article 14.
135. _Articles_ 9 _and_ 10 were adopted without modification, article 9
being embodied, as explained, in articles 17 and 21 of the final
Protocol, and article 10 becoming article 20.
136. The text of an additional article (which became article 19 of the
final Protocol) was also approved.
After the work of the First and Third Committees had been concluded,
the reports of these Committees were submitted as a whole to the
Assembly. The Assembly unanimously, with the assent of every
Delegation represented at that time in the Assembly, approved the
reports so presented them, and passed the resolutions, the text of
which has already been published.[3]
We are,
Sir,
Your obedient servants,
ARTHUR HENDERSON.
PARMOOR.
GILBERT MURRAY.
CECIL J. B. HURST.
The Right. Hon.
J. RAMSAY MACDONALD, M. P.,
&c. &c. &c.
[1] Miscellaneous No. 13 (1924), Cmd. 2200.
[2] See Annex C, p. 156.
[3] See Annex D, p. 210.
{263}
ANNEX F.
PROPOSALS OF THE AMERICAN GROUP.[1]
DECLARATION OUTLAWING AGGRESSIVE WAR.
CHAPTER I.
OUTLAWRY OF AGGRESSIVE WAR.
ARTICLE 1.--The High Contracting Parties solemnly declare that
aggressive war is an international crime. They severally undertake not
to be guilty of its commission.
ARTICLE 2.--A State engaging in war for other than purposes of defense
commits the international crime described in Article 1.
ARTICLE 3.--The Permanent Court of International Justice shall have
jurisdiction, on the complaint of any signatory, to make a judgment to
the effect that the international crime described in Article 1 has or
has not in any given case been committed.
CHAPTER II.
ACTS OF AGGRESSION.
ARTICLE 4.--The High Contracting Parties solemnly declare that acts of
aggression, even when not amounting to a state of war, and preparations
for such acts of aggression, are hereafter to be deemed forbidden by
international law.
{264}
ARTICLE 5.--In the absence of a state of war, measures of force by
land, by sea or in the air taken by one State against another and not
taken for the purpose of defense against aggression or for the
protection of human life shall be deemed to be acts of aggression.
General or partial mobilisation may be deemed to be preparation for an
act of aggression.
Any signatory which claims that another signatory has violated any of
the terms of this Declaration shall submit its case to the Permanent
Court of International Justice.
A signatory refusing to accept the jurisdiction of the Court in any
such case shall be deemed an aggressor within the terms of this
Declaration.
Failure to accept the jurisdiction of the Court within four days after
notification of submission of a claim of violation of this Declaration
shall be deemed a refusal to accept the jurisdiction.
ARTICLE 6.--The Court shall also have jurisdiction on the complaint of
any signatory to make a judgment to the effect that there has or has
not in any given case been committed a violation of international law
within the terms of Article 4.
ARTICLE 7.--The Court shall, in any case, have the power to indicate,
if it considers that circumstances so require, any provisional measures
which ought to be taken to reserve the respective rights of either
party.
Pending the final decision, notice of the measures suggested shall
forthwith be given to the parties.
CHAPTER III.
SANCTIONS.
ARTICLE 8.--In the event of any H.C.P. having been adjudged an
aggressor pursuant to this Declaration, all commercial, trade,
financial and property interests of the aggressor shall cease to be
entitled, either in the territory of the other signatories or on {265}
the high seas, to any privileges, protection, rights or immunities
accorded by either international law, national law or treaty.
Any H.C.P. may in such case take such steps towards the severence of
trade, financial, commercial and personal intercourse with the
aggressor and its nationals as it may deem proper and the H.C.P. may
also consult together in this regard.
The period during which any such economic sanction may be continued
shall be fixed at any time by the Court at the request of any signatory.
In the matter of measures of force to be taken, each signatory shall
consult its own interests and obligations.
ARTICLE 9.--If any H.C.P. shall be adjudged an aggressor by the
Permanent Court of International Justice, such Power shall be liable
for all damage to all other H.C.P. resulting from its aggression.
CHAPTER IV.
DECREES OF THE PERMANENT COURT.
ARTICLE 10.--The H.C.P. agree to accept the judgment of the Permanent
Court of International Justice as to the fulfilment of violation of the
contracts of this Declaration.
Any question arising under this Declaration is _ipso facto_ within the
jurisdiction of the Court.
ARTICLE 11.--If a dispute arising under this Declaration shall be
submitted to the Permanent Court of International Justice, it is for
the Court to decide as to its jurisdiction and also whether or not its
decree has been complied with.
ARTICLE 12.--The High Contracting Parties, recognising that excessive
armaments constitute a menace of war, agree to participate in the
Permanent Advisory Conference on Disarmament decided upon by the Fifth
Assembly of the League of Nations.
ARTICLE 13.--The present Declaration shall be ratified. The
ratifications shall be deposited as soon as possible with the Secretary
General of the League of Nations.
{266}
Any signatory to this Declaration desiring to withdraw therefrom may
give notice thereof to the Secretary-General of the League of Nations.
Such notice shall take effect one year from the date of deposit thereof
and only as to the signatory so withdrawing.
Notice of each ratification and of each withdrawal shall be
communicated by the Secretary-General of the League of Nations to each
signatory hereto.
RESOLUTION CONCERNING THE DECLARATION OUTLAWING AGGRESSIVE WAR.
1. The Assembly unanimously declares its approval of the Declaration
Outlawing Aggressive War which was prepared by the Third Committee of
the Assembly and submitted to the Assembly for its approval.
2. The said Declaration shall be submitted within the shortest possible
time to the Members of the League of Nations for adoption in the form
of a protocol duly ratified and declaring their recognition of this
Declaration. It shall be the duty of the Council to submit the
Declaration to the Members.
The said protocol shall likewise remain open for signature by States
not Members of the League of Nations.
3. As soon as this protocol has been ratified by the majority of the
Members of the League the said Declaration shall go into force.
DISARMAMENT RESOLUTION "A."
1. The Assembly, having considered the Report of the Temporary Mixed
Commission and having also considered the replies of the various
Governments commenting on the proposed Treaty of Mutual Assistance,
reaffirms the principles set forth in Resolution 14 of the Third
Assembly,
2. Furthermore, the Assembly is of the opinion that all the {267}
Nations of the world, whether or not Members of the League of Nations,
should agree
a. to limit or reduce their armaments to the basis necessary
for the maintenance of peace and national security.
b. to study the ways and means for future reduction of
armaments either as between all Nations or as between any
two of them.
3. The Assembly is further of the opinion that reciprocal agreements
between two or more neighbouring countries for the establishment of
demilitarised zones would facilitate the security necessary to
progressive disarmament.
4. In order to facilitate the reduction and limitation of armaments,
the Assembly requests the Council to call a Permanent Advisory
Conference upon disarmament which shall meet periodically at intervals
of not less than once every three years.
Invitations to participate in this Permanent Conference shall be sent
to all Nations whether Members of the League or not.
The said Conference should from time to time consider the further
codifying of the principles of international law particularly in
relation to acts of aggression and preparations for such acts.
In this regard the Conference should take into account matters bearing
upon the security of the Powers represented and the steps taken toward
disarmament.
The recommendations of the Conference shall be submitted to the Powers
for their adoption, and shall also be transmitted to the Permanent
Court of International Justice.
The said Conference should publish periodical reports concerning the
actual conditions of the armaments of the Powers.
The said Conference should advise the Powers concerning measures to be
taken to ensure the carrying out of the principles of the present
Resolution and it may prepare draft treaties for the establishment of
demilitarised zones and for the further promotion of disarmament and
peace.
{268}
5. The said Conference should appoint a Permanent Technical Committee.
6. The said Conference or its Permanent Technical Committee should give
advice on technical questions to the Permanent Court of International
Justice at the request of said Court.
7. The expenses of the said Conference and of its agencies should be
borne by the Powers in the proportion of their respective budgets for
defense.
DISARMAMENT RESOLUTION "B."
1. Considering that by the terms of Article 8 of the Covenant of the
League of Nations
"The Members of the League undertake to interchange full
and frank information as to the scale of their armaments,
their military, naval and air programmes and the condition
of such of their industries as are adaptable to warlike
purposes,"
the Assembly, in order to facilitate the carrying out of the said
engagement, requests the Council to set up a Commission charged with
the duty of making the necessary official examinations and reports.
2. The said Commission shall proceed under such regulations as the
Council and the Assembly shall from time to time approve.
3. Subject to such regulations the members of the Commission shall be
entitled, when they deem it desirable, to proceed to any point within
the territory of any Member of the League or to send sub-commissions or
to authorize one or more of their members so to proceed on behalf of
the Commission.
4. The Members of the League will give all necessary facilities to the
said Commission in the performance of its duties.
5. All reports made by the said Commission shall be communicated to the
Members of the League.
{269}
DISARMAMENT RESOLUTION "C."
The Assembly, taking account of the provisions of the Declaration
Outlawing Aggressive War, is of opinion
1. Powers which have ratified the said Declaration may, subject to the
following provisions, conclude, either as between two of them or as
between a larger number, agreements complementary to the said
Declaration, exclusively for the purpose of their mutual defense and
intended solely to facilitate the carrying out of the measures
prescribed in said Declaration, determining in advance the assistance
which they would give to each other in the event of any act of
aggression.
Such agreements may, if the H.C.P. interested so desire, be negotiated
and concluded under the auspices of the Council.
2. Complementary agreements as defined in the preceding paragraph,
shall, before being registered, be examined by the Council with a view
to deciding whether they are in accordance with the principles of said
Declaration and of the Covenant.
In particular, the Council shall consider if the cases of aggression
contemplated in these agreements are of a nature to give rise to an
obligation to give assistance on the part of the other H.C.P.
The Council may, if necessary, suggest changes in the texts of the
agreements submitted to it.
When recognised, the agreements shall be registered in conformity with
Article 16 of the Covenant. They shall be regarded as complementary to
the said Declaration and shall in no way limit the general obligations
of the H.C.P. nor the sanctions contemplated against an aggressor under
the terms of said Declaration.
They will be open to any other H.C.P., Party to said Declaration with
the consent of the Signatory States.
3. In all cases of aggression, for which provision is made in the
agreement constituting a defensive group, the H.C.P. which are members
of such group may undertake to put into operation {270} automatically
the plan of assistance agreed upon between them; and in all other cases
of aggression or menace or danger of aggression, directly aimed at
them, they will consult each other before taking action, and will
inform the Council of the measures which they are contemplating.
4. The Council, taking into account the reports and opinions of the
Commission set up under Resolution B of this Assembly, shall at any
time when requested, consider summarily whether (a) the armaments of
any State are in excess of those fixed under the provisions of any
agreement relating to reduction or limitation or armaments; or (b) the
military or other preparations of any State are of such a nature as to
cause apprehension of aggression or an eventual outbreak of hostilities.
5. If the Council shall upon such request be of the opinion that there
is reasonable ground for thinking that a menace of aggression has
arisen, the parties to the defensive agreements hereinbefore mentioned
may put into immediate execution the plan of assistance which they have
agreed upon.
6. If the Council shall, upon such request, not be of the opinion that
a menace of aggression has arisen, a public report to the effect shall
be made and in such case no State shall be under any obligation to put
into execution any plan of assistance to which it is a party; but any
Member of the League, believing itself to be threatened with a menace
of aggression, notwithstanding the fact that the Council has not been
of such opinion, may forthwith notify the Council to that effect, and
such Member shall thereupon have full liberty of action in military or
other preparations for defense, subject, however, to the limitations as
to armament which are imposed by any treaty now in force.
[1] In their earlier form, as a Draft Treaty of Disarmament and
Security, these proposals were circulated to the Members of the Council
of the League in June, 1924. For the text, see World Peace Foundation
Pamphlets, Vol. VII, No. 8. In the form here printed, the so-called
"American Plan" was given out at Geneva on August 29, 1924, with the
following note by General Bliss, Professor Shotwell and myself:
"It has been suggested that the proposals of the Draft Treaty of
Disarmament and Security prepared by the American Group, of which we
are members, might be drawn up in some form other than that of one
Treaty.
"In order to facilitate the examination of this suggestion, we have
prepared the four draft papers which follow. These papers are a Draft
Declaration Outlawing Aggressive War (with a Draft Assembly Resolution
regarding the same) and three Draft Resolutions of the Assembly
regarding Disarmament.
"Aside from the necessary drafting changes required by the change of
form, the text of these papers is substantially, and except in a few
instances, literally the same as that of the Draft Treaty of
Disarmament and Security above mentioned."
{271}
ANNEX G.
THE COVENANT
OF THE LEAGUE OF NATIONS.
INCORPORATING THE PROVISIONS OF THE
PROTOCOL OF GENEVA.[1]
[Sidenote: Two clauses added from the Preamble to the Protocol.]
Recognising the solidarity of the members of the international
community, and
Asserting that a war of aggression constitutes a violation of this
solidarity and an international crime,
THE HIGH CONTRACTING PARTIES,
In order to promote international co-operation and to achieve
international peace and security
by the acceptance of obligations not to resort to war,
by the prescription of open, just and honourable relations
between nations,
by the firm establishment of the understandings of international
law as the actual rule of conduct among Governments, and
by the maintenance of justice and a scrupulous respect for all
treaty obligations in the dealings of organised peoples with
one another,
Agree to this Covenant of the League of Nations.
Articles 1 to 11, Inclusive.
Unchanged.
Article 11a.
[Sidenote: Article 2 of the Protocol with verbal changes.]
The Members of the League 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 of the Covenant, except in case of resistance to
acts of aggression or when acting in agreement with the Council or the
Assembly in accordance with the provisions of the Covenant.
{272}
Article 12.
[Sidenote: Phrase agreeing not to resort to war for three months,
omitted as unnecessary.]
The Members of the League agree that if there should arise between them
any dispute likely to lead to a rupture, they will submit the matter
either to arbitration or judicial settlement or to inquiry by the
Council.
In any case under this Article the award of the arbitrators or the
judicial decision shall be made within a reasonable time, and the
report of the Council shall be made within six months after the
submission of the dispute.
Article 13.
The Members of the League agree that, whenever any dispute shall arise
between them which they recognise to be suitable for submission to
arbitration or judicial settlement, and which cannot be satisfactorily
settled by diplomacy, they will submit the whole subject-matter to
arbitration or judicial settlement.
Disputes as to the interpretation of a treaty, as to any question of
international law, as to the existence of any fact which, if
established, would constitute a breach of any international obligation,
or as to the extent and nature of the reparation to be made for any
such breach, are declared to be among those which are generally
suitable for submission to arbitration or judicial settlement.
[Sidenote: A verbal change in the third paragraph.]
For the consideration of any such dispute, the court to which the case
is referred shall be the Permanent Court of International Justice, or
any tribunal agreed on by the parties to the dispute or stipulated in
any convention existing between them.
The Members of the League agree that they will carry out in full good
faith any award or decision that may be rendered, and that they will
not resort to war against a Member of the League which complies
therewith. In the event of any failure to carry out such an award or
decision, the Council shall propose what steps should be taken to give
effect thereto.
Article 14.
[Sidenote: Article 14 of the Covenant, verbally changed.]
The Permanent Court of International Justice shall be competent to hear
and determine any dispute of an international character which the
parties thereto submit to it. The Court may also give an advisory
opinion upon any dispute or question referred to it by the Council or
by the Assembly.
[Sidenote: Article 3 of the Protocol, with some words added.]
The Members of the League undertake to recognize as compulsory, _ipso
facto_ and without special agreement, the jurisdiction of the Permanent
Court of International Justice in the cases covered by paragraph 2 of
Article 36 of the Statute of the Court, but without prejudice to the
right of any Member, when acceding to the special protocol provided for
in the said Article and opened for signature on December 16th, 1920, to
make reservations compatible with the said clause.
{273}
Accession to this special protocol, opened for signature on December
16th, 1920, must be given within a month after the coming into force
hereof, and in the case of Members of the League hereafter admitted,
within a month after such admission.
[Sidenote: Article 20 of the Protocol.]
Any dispute as to the interpretation of the Covenant shall be submitted
to the Permanent Court of International Justice.
Article 15.
[Sidenote: The first three paragraphs of Article 15 of the Covenant,
unchanged.]
If there should arise between Members of the League any dispute likely
to lead to a rupture which is not submitted to arbitration or judicial
settlement in accordance with Article 13, the Members of the League
agree that they will submit the matter to the Council. Any party to
the dispute may effect such submission by giving notice of the
existence of the dispute to the Secretary-General, who will make all
necessary arrangements for a full investigation and consideration
thereof.
For this purpose the parties to the dispute will communicate to the
Secretary-General, as promptly as possible, statements of their case
with all the relevant facts and papers, and the Council may forthwith
direct the publication thereof.
The Council shall endeavour to effect a settlement of the dispute, and,
if such efforts are successful, a statement shall be made public giving
such facts and explanations regarding the dispute and the terms of
settlement thereof as the Council may deem appropriate.
[Sidenote: Numbers 1 and 2 of Article 4 of the Protocol, very slightly
changed.]
If the dispute is not thus settled, the Council shall endeavour to
persuade the parties to submit the dispute to judicial settlement or
arbitration.
If the parties cannot agree to do so, there shall, at the request of at
least one of the parties, be constituted a Committee of Arbitrators.
The Committee shall so far as possible be constituted by agreement
between the parties.
If within the period fixed by the Council the parties have failed to
agree, in whole or in part, upon the number, the names and the powers
of the arbitrators and upon the procedure, the Council shall settle the
points remaining in suspense. The Council shall with the utmost
possible dispatch select in consultation with the parties 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.
After the claims of the parties have been formulated, the Committee of
Arbitrators, on the request of any party, shall through the medium of
the Council, request an advisory opinion upon any points of law in
dispute from the Permanent Court of International Justice, which in
such case shall meet with the utmost possible dispatch.
{274}
[Sidenote: 3 of Article 4 of the Protocol, and the fourth, fifth and
sixth paragraphs of Article 15 of the Covenant]
If none of the parties asks for arbitration, the Council shall take the
dispute under consideration and, either unanimously or by a majority
vote, shall make and publish a report containing a statement of the
facts of the dispute and the recommendations which are deemed just and
proper in regard thereto.
Any Member of the League represented on the Council may make public a
statement of the facts of the dispute and of its conclusions regarding
the same.
If a report by the Council is unanimously agreed to by the Members
thereof, other than the Representatives of any of the parties to the
dispute, the Members of the League agree to comply with the
recommendations of the report.
[Sidenote: 5 of Article 4 of the Protocol, with verbal changes. Eighth
paragraph of Article 15 of the Covenant.]
In no case may a solution, in accordance with a unanimous
recommendation of the Council accepted by one of the parties concerned,
be again called in question.
If the dispute between the parties is claimed by one of them, and is
found by the Council to arise out of a matter which by international
law is solely within the domestic jurisdiction of that party, the
Council shall so report and shall make no recommendation as to its
settlement.
[Sidenote: Seventh paragraph of Article 15 of the Covenant, as modified
by 4 of Article 4 of the Protocol.]
If the Council fails to reach a report which is unanimously agreed to
by the Members thereof, other than the Representatives of any of the
parties to the dispute, it shall submit the dispute to arbitration.
The Council shall itself determine the composition, the powers and the
procedure of the Committee of Arbitrators and, in the choice of the
arbitrators, shall bear in mind the guarantees of competence and
impartiality referred to above.
[Sidenote: 6 of Article 4 of the Protocol, omitting clauses now
unnecessary.]
The Members of the League undertake that they will carry out in full
good faith any judicial sentence or arbitral award that may be rendered
and that they will comply, as provided in paragraph ten hereof, with
the solutions recommended by the Council. In the event of a Member of
the League failing to carry out the above undertakings, the Council
shall exert all its influence to secure compliance therewith. If the
Council fails therein, it shall propose what steps should be taken to
give effect thereto.
[Sidenote: Paragraphs nine and ten of Article 15 of the Covenant, and
Article 6 of the Protocol.]
The Council may in any case under this Article refer the dispute to the
Assembly. The dispute shall be so referred at the request of either
party to the dispute, provided that such request be made within
fourteen days after the submission of the dispute to the Council.
In any case referred to the Assembly, all the provisions of this
Article and of Article 12 relating to the action and powers of the
Council shall apply to the action and powers of the Assembly, provided
that a report made by the Assembly, if concurred in by the
Representatives of those Members of the League represented on the
Council and of a majority of the other Members of the League, exclusive
in each case of the Representatives of the parties to the {275}
dispute, shall have the same force as a report by the Council concurred
in by all the Members thereof, other than the Representatives of any of
the parties to the dispute; and provided further that in any case
referred to the Assembly, the powers of the Council under paragraphs
five, six, seven and fourteen hereof shall continue.
[Sidenote: 7 of Article 4 of the Protocol.]
The provisions of this article do not apply to the settlement of
disputes which arise as the result of measures of war taken by one or
more Members of the League in agreement with the Council or the
Assembly.
Article 15a.
[Sidenote: From Article 5 of the Protocol.]
If in the course of an arbitration, such as is contemplated in Article
15, one of the parties claims that the dispute, or part thereof, arises
out of a matter which by international law is solely within the
domestic jurisdiction of that party, the arbitrators shall on this
point take the advice of the Permanent Court of International Justice
through the medium of the Council. The opinion of the Court shall be
binding upon the arbitrators, who, if the opinion is affirmative, shall
confine themselves to so declaring in their award.
If the question is held by the Court or by the Council to be a matter
solely within the domestic jurisdiction of the State, this decision
shall not prevent consideration of the situation by the Council or by
the Assembly under Article 11.
Article 15b.
[Sidenote: Articles 8 and 7 of the Protocol, slightly changed.]
The Members of the League undertake to abstain from any act which might
constitute a threat of aggression against another State.
If a Member of the League is of opinion that another State is making
preparations for war, it shall have the right to bring the matter to
the notice of the Council.
In the event of a dispute arising between two or more Members of the
League, they agree that they will not, either before the dispute is
submitted to proceedings for pacific settlement or during such
proceedings, make any increase of their armaments or effectives which
might modify the position established by any agreement in force, nor
will they take any measure of military, naval, air, industrial or
economic mobilisation, nor, in general, any action of a nature likely
to extend the dispute or render it more acute.
It shall be the duty of the Council, in accordance with the provisions
of Article 11, to take under consideration any complaint as to
infraction of the above undertakings which is made to it by one or more
of the parties to the dispute. Should the Council be of opinion that
the complaint requires investigation, it shall, if it deems it
expedient, arrange for inquiries and investigations in one or more of
the countries concerned. Such inquiries and investigations shall be
carried out with the utmost possible dispatch and the Members of the
League undertake to afford every facility for carrying them out.
{276}
The sole object of measures taken by the Council as above provided is
to facilitate the pacific settlement of disputes and they shall in no
way prejudge the actual settlement.
If the result of such inquiries and investigations is to establish an
infraction of the above undertakings, it shall be the duty of the
Council to summon the Member or Members of the League guilty of the
infraction to put an end thereto. Should any Member of the League in
question fail to comply with such summons, the Council shall declare it
to be guilty of a violation of the Covenant, and shall recommend
measures to be taken with a view to end as soon as possible a situation
of a nature to threaten the peace of the world.
For the purposes of this Article decisions of the Council may be taken
by a two-thirds majority.
Article 15c.
[Sidenote: Article 9 of the Protocol, slightly changed.]
The existence of demilitarised zones being calculated to prevent
aggression and to facilitate a definite finding of the nature provided
for in Article 15d, the establishment of such zones between States
mutually consenting thereto is to recommend as a means of preserving
peace.
The demilitarised zones already existing under the terms of certain
treaties or conventions, or which may be established in future between
States mutually consenting thereto, may at the request and at the
expense of one or more of the conterminous States, be placed under a
temporary or permanent system of supervision to be organised by the
Council.
Article 15d.
[Sidenote: Article 10 of the Protocol, with verbal changes.]
Any Member of the League which resorts to war in violation of the
undertakings contained in the Covenant is an aggressor. Violation of
the rules laid down for a demilitarised zone shall be held equivalent
to resort to war.
In the event of hostilities having broken out, any Member of the League
shall be presumed to be an aggressor (unless a decision of the Council,
which must be taken unanimously, shall otherwise declare) which
(a) has refused to submit the dispute to the procedure of pacific
settlement provided by the Covenant, or
(b) has refused to comply with a judicial sentence or arbitral award or
with a unanimous recommendation of the Council, or
(c) has disregarded a unanimous report of the Council, a judicial
sentence or an arbitral award recognizing that the dispute between it
and the other belligerent arises out of a matter which by international
law is solely within the domestic jurisdiction of the latter State, and
has not previously submitted the question to the Council or the
Assembly, in accordance with Article 11, or
(d) has violated provisional measures enjoined by the Council {277} for
the period while the proceedings are in progress as contemplated by
Article 15b.
Apart from the cases dealt with in sub-heads a, b, c and d of this
Article, if the Council does not at once, by unanimous vote, succeed in
determining the aggressor, it shall be bound to enjoin upon the
belligerents an armistice, and shall fix the terms, acting if need be,
by a two-thirds majority and shall supervise its execution.
Any belligerent which refuses to accept the armistice or violates its
terms shall be deemed an aggressor.
The Council shall call upon the Members of the League to apply
forthwith against the aggressor the sanctions provided by the Covenant,
and any Member of the League thus called upon shall thereupon be
entitled to exercise the rights of a belligerent.
[Sidenote: Article 14 of the Protocol.]
The Council shall alone be competent to declare that the application of
sanctions shall cease and normal conditions be reestablished.
Article 16.
[Sidenote: This combines Article 16 of the Covenant and Article 11 of
the Protocol. It omits much of the pending amendments to Article 16 of
the Covenant as superfluous.]
Should any Member of the League resort to war, in disregard of its
covenants, it shall _ipso facto_ be deemed to have committed an act of
war against all other Members of the League, which hereby undertake
immediately to subject it to the severance of all trade or financial
relations and to prohibit all intercourse, at least between persons
resident within their territories and persons resident within the
territory of the covenant-breaking State, and, if they deem it
expedient, also between their nationals and the nationals of the
covenant-breaking State, and to prevent all financial, commercial or
personal intercourse at least between persons resident within the
territory of that State and persons resident within the territory of
every other State, and, if they deem it expedient, also between the
nationals of that State and the nationals of every other State.
It shall be the duty of the Council in such case to recommend to the
several Governments concerned what effective military, naval or air
force the Members of the League shall severally contribute to the armed
forces to be used to protect the Covenants of the League.
As soon as the Council has called upon the Members of the League to
apply sanctions, as provided in Article 15d, the obligations of the
Members of the League in regard to the sanctions mentioned in
paragraphs one and two of this Article will immediately become
operative in order that such sanctions may forthwith be employed
against the aggressor.
Those obligations shall be interpreted as obliging each Member of the
League to co-operate loyally and effectively in support of the
Covenant, and in resistance to any act of aggression, in the degree
which its geographical position and its particular situation as regards
armaments allow.
The Members of the League agree, further, that they will mutually
support one another in the financial and economic measures {278} which
are taken under this Article, in order to minimise the loss and
inconvenience resulting from the above measures, and that they will
mutually support one another in resisting any special measures aimed at
one of their number by the covenant-breaking State, and that they will
take the necessary steps to afford passage through their territory to
the forces of any of the Members of the League which are co-operating
to protect the covenants of the League.
The Members of the League jointly and severally undertake to come to
the assistance of the State attacked or threatened, and to give each
other mutual support by means of facilities and reciprocal exchanges as
regards the provision of raw materials and supplies of every kind,
openings of credits, transport and transit, and for this purpose to
take all measures in their power to preserve the safety of
communications by land and by sea of the attacked or threatened State.
If both parties to the dispute when so invited refuse to accept of
Article 15d, the economic and financial sanctions shall be applied to
both of them.
Any Member of the League which has violated any covenant of the League
may be declared to be no longer a Member of the League by a vote of the
Council concurred in by the Representatives of all the other Members of
the League represented thereon.
Article 16a.
[Sidenote: Article 12 of the Protocol, with slight changes.]
In view of the complexity of the conditions in which the Council may be
called upon to exercise the functions mentioned in Article 16
concerning economic and financial sanctions, and in order to determine
more exactly the guarantees afforded to the Members of the League, the
Council shall from time to time invite the economic and financial
organizations of the League to consider and report as to the nature of
the steps to be taken to give effect to the financial and economic
sanctions and measures of co-operation contemplated in Article 16.
From time to time, the Council shall draw up through its competent
organs:
1. Plans of action for the application of the economic and
financial sanctions against an aggressor State;
2. Plans of economic and financial co-operation between a
State attacked and the different States assisting it;
and shall communicate these plans to the Members of the League.
Article 16b.
[Sidenote: Article 13 of the Protocol, with slight changes.]
In view of the contingent military, naval and air sanctions provided
for by Article 16, the Council shall be entitled to receive
undertakings from Members of the League 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.
{279}
Furthermore, as soon as the Council has called upon the Members of the
League to apply sanctions, as provided in Article 15d, the said Members
of the League may, in accordance with any agreements which they may
previously have concluded, bring to the assistance of a particular
State, which is the victim of aggression, their military, naval and air
forces.
The agreements mentioned in the preceding paragraph shall be registered
and published by the Secretariat. They shall remain open to all
Members of the League which may desire to accede thereto.
Article 17.
[Sidenote: Article 17 of the Covenant, with verbal changes.]
In the event of a dispute between a Member of the League and a State
which is not a Member of the League, or between States not Members of
the League, the State or States not Members of the League shall be
invited to accept the obligations of membership in the League for the
purposes of such dispute, upon such conditions as the Council may deem
just. If such invitation is accepted, the provisions of the Covenant
shall be applied with such modifications as may be deemed necessary by
the Council.
Upon such invitation being given, the Council shall immediately
institute an inquiry into the circumstances of the dispute and
recommend such action as may seem best and most effectual in the
circumstances.
If a State so invited shall refuse to accept the obligations of
membership in the League for the purposes of such dispute and shall
resort to war against a Member of the League, the provisions of Article
16 shall be applicable as against the State taking such action.
If both parties to the dispute when so invited refuse to accept the
obligations of membership in the League for the purposes of such
dispute, the Council may take such measures and make such
recommendations as will prevent hostilities and will result in the
settlement of the dispute.
Article 17a.
[Sidenote: Article 15 of the Protocol, with verbal changes.]
The Members of the League agree that the whole cost of any military,
naval or air operations undertaken for the repression of an aggression
under the terms of the Covenant, and reparation for all losses suffered
by individuals, whether civilians or combatants, and for all material
damage caused by the operations of both sides, shall be borne by the
aggressor State up to the extreme limit of its capacity.
Nevertheless, in view of Article 10, neither the territorial integrity
nor the political independence of the aggressor State shall in any case
be affected as the result of the applications of the sanctions of the
Covenant.
Articles 18 to 26, Inclusive.
Unchanged.
[1] This is my draft. See _supra_, p. 106. In the text it is called
the "amended" Covenant.
Transcriber's notes:
In the source book, footnotes on each page were lettered from 'a'. For
this ebook, each chapter's footnotes were numbered, sequentially from
1, and moved to the end of the chapter.
Page numbers in this ebook are indicated by numbers enclosed in curly
braces, e.g. {99}. They have been located where page breaks occurred
in the original book, in accordance with Project Gutenberg's FAQ-V-99.
End of Project Gutenberg's The Geneva Protocol, by David Hunter Miller