 |
But in time of peace, the "control of raw materials" in the last analysis means that the owners of those materials can do only two things with them, use them or to sell them. This is perhaps most obvious in the case of such raw materials as are perishable, but it is true of all.
Take such a product as copper, for example. Some countries have copper mines, others have none. But the ownership of a copper mine is of no possible advantage unless the copper produced from that mine is manufactured into something else or is sold. Of course temporarily a mine owner may leave his ore in the ground or may store a supply of copper above ground; but these are expedients to be resorted to only in some time of over-production and impossible of continuance. If the product of the mine is not either used or sold, its advantage is purely a theoretical possibility of the future. It has no more value in present reality than a bank note on a desert island.
The really important factor, as to raw materials, is access to the market on an equal footing.
{42}
In practice there are only two ways in which a State or its citizens can be discriminated against, in time of peace, so far as the State's access to supplies of raw materials is concerned. They are as follows:
(1) By discriminatory export duties, or similar duties. In practice these are not important.
(2) By discrimination in respect of prices, or similar matters, by monopolistic producers. To achieve this result it is necessary not merely that one State should have a "monopoly" of the supply of some raw materials, but also that within that State, the production and sales of the raw materials should be in the hands of monopoly. Further, the domestic monopolistic organization, must, in order that discrimination should be an outcome of the situation, find it profitable (not merely "patriotic") to discriminate in favor of the domestic market. There is no important instance of such discrimination.
Such conjunction of circumstances is one which is exceedingly unlikely to occur. There is more chance that there will be discrimination in favor of the foreign buyer. In short, the matter is not one of great practical importance, for
(1) a raw material supplied only by one State and (2) controlled, within the State, by a monopoly, which also (3) finds it profitable to discriminate against foreign buyers
is something to be found only in imagination.
I venture to say that there has never been a time in modern civilization when the people of any country have been prevented by the international situation from obtaining any raw material whatever for which they had the capacity to pay. The only possible exception to this statement has been in time of war[15]; and the only possible change in the situation in time of peace would, as I have suggested, amount to some form of compulsory international charity.
{43}
If we look generally at this question of the status quo from the international point of view during the past two centuries, we find two divergent and irreconcilable lines of treatment.
The jurists and the writers have generally considered that the status quo is or ought to be sacred from the point of view of outside attack.[16] In most of the books the question is treated under the heading of "Intervention" and, perhaps with some qualifications, the writers do not admit the legality of intervention. They make exceptions on the ground of self preservation of the intervening State, sometimes on the ground of protection of human life and so on. But, at least with these exceptions, they generally maintain that the State against which the intervention is directed may legally object to it—that is, may legally insist upon the maintenance of the status quo (or of its right, in a proper case, to change the status quo[17]) and furthermore that such a State might justly, if able (as it usually is not), resort to war against the intervention.
On the other hand, the history of international affairs during this period is quite to the contrary.[18] Over and over again States, sometimes individually, sometimes some of them collectively, have interfered with the affairs of another State with which they Had strictly no legal concern, on many different occasions and on all sorts of pretexts. They have defended such intervention at times on the vague grounds of the rights of humanity, the interests of commerce, the restoration of order and so on.
Any one who is familiar, even in a cursory way, with the history of Europe will be able to recall numerous such instances; and it must in fairness be admitted that in some of them the result has seemed beneficent.[19]
And it must not be forgotten that it is not only the wicked powers of Europe that have acted along these lines. In reference {44} to the affairs of other countries, though not its own, the United States has maintained this privilege of paternal intervention by force. We maintained it, for example, in Cuba in 1898, chiefly on the ground of the sake of humanity.[20] In connection with the Panama Canal, Mr. Root set up the famous proposition[21] that the sovereignty of Columbia over the Isthmus was limited and qualified by the general right of mankind to have a canal between the Atlantic and the Pacific, and to have that canal kept open for the commerce of all.
Many other instances might be cited. It is, however, worth while to recall in connection with this alleged limited right of sovereignty of Columbia over part of its territory that the United States subsequently paid $25,000,000 to the owner of the qualified fee.
It is perhaps unnecessary to add that this alleged right of intervention, as between great powers, was recognized by another name as a method of changing the status quo, namely, the method of war.
The effect of the Protocol is unquestionably to consecrate the international status quo with a definite position of legality, not to be disturbed by force.[22] The views of the writers, as opposed to the practice of Great Powers, have been adopted.
Article 2 of the Protocol forbids a resort to war[23] as against any {45} other State, a party to the Protocol, "except in case of resistance to acts of aggression."[24]
Under Article 8, every Signatory agrees to abstain from any act which might constitute a threat of aggression.
Under these provisions and the provisions of the Protocol for the settlement of international disputes, intervention to upset the status quo (or to prevent a state from changing it where it legally may) becomes aggression and is an international crime.
[1] Such as discovery, occupation of terra nullius, etc. See the Treaty of Spitzbergen, A. J. I. L., Vol. XVIII, p. 109.
[2] A. J. I. L., Vol. XI, at p. 626.
[3] A.J. I. L, Vol. XI, Supp. 1917, p. 53.
[4] Some regions of Asia may be exceptions.
[5] See the Franco-Swiss Free Zones, by Louis Schulthess, in Foreign Affairs, Vol. 3, No. 2, p. 331, with map.
[6] "Et il faut bien remarquer, que la Guerre ne dcide pas la question; la Victoire contraint seulement le vaincu donner les mains au Trait qui termine le diffrend. C'est une erreur non moins absurde que funeste, de dire, que la Guerre doit dcider les Controverses entre ceux qui, comme les Nations, ne reconnoissent point de Juge." Vattel, Book III, Section 38.
[7] In general, this is the theory of Article Ten of the Covenant.
[8] See the Genesis of the War, Asquith, pp. 97, 98.
[9] Article 15.
[10] President Wilson's so-called first draft of the Covenant contained a provision along these lines in Article III. See Woodrow Wilson and World Settlement, Baker, Vol. III, p. 89.
[11] The statistics of language, etc., even when accurate, do not always forecast the popular wish. Upper Silesia is an instance of this fact. The statistics, as stated in the note of Clemenceau of June 16, 1919, showed 1,250,000 Poles and 650,000 Germans. The vote was 717,122 for Germany and 483,514 for Poland.
[12] The Convention between Germany and Poland relating to the rgime of Upper Silesia is a document of some 300 pages.
[13] I am greatly indebted to Professor A. A. Young for some of my economic information; but he is in no way responsible for any of my conclusions.
[14] Of course this is an over-statement. Germany produces about one-tenth of her consumption of copper.
[15] Or a period due to war, such as 1919-1920.
[16] See Hall, International Law (Seventh Edition), Chapter VIII, for an illuminating discussion.
[17] Such as the right of State A to cede territory to State B, notwithstanding the objection of State C to such a cession.
[18] See Moore's Digest, Vol. VI, pp. 2-367.
[19] Such as the intervention in Greece in 1827 by Great Britain, France and Russia. See Hertslet's Map of Europe by Treaty, Vol. I, p. 769.
[20] See the Message of President McKinley, April 11, 1898, Foreign Relations, 1898, p. 750 at p. 757.
[21] The Ethics of the Panama Question, Sen. Doc. 471, 63rd Congress, 2nd Session, p. 39.
[22] There is a reference to the status quo in the General Report (Annex C, p. 181), which uses this language:
"There is a third class of disputes to which the new system of pacific settlement can also not be applied. These are disputes which aim at revising treaties and international acts in force, or which seek to jeopardise the existing territorial integrity of signatory States. The proposal was made to include these exceptions in the Protocol, but the two Committees were unanimous in considering that, both from the legal and from the political point of view, the impossibility of applying compulsory arbitration to such cases was so obvious that it was quite superfluous to make them the subject of a special provision. It was thought sufficient to mention them in this report."
[23] For the view that this includes acts of force, even in the absence of a state of war, see infra, p. 55.
[24] The other exception "when acting in agreement with the Council," etc., is not here material. It is discussed infra, p. 50.
{46}
CHAPTER VIII.
DOMESTIC QUESTIONS.
The treatment in the Protocol of so-called domestic questions aroused a great deal of discussion not only at the Assembly, last September, but since the adoption there of the text.
It may be remembered that there was a similar public discussion at the time of the drafting of the Covenant; in that document[1] a domestic question is defined as "a matter which by international law is solely within the domestic jurisdiction" of a State.
Among instances of domestic questions which have been mentioned from time to time, perhaps the two most commonly referred to in this country are the tariff and immigration. Of course it has been pointed out very often that even such questions as these, however inherently domestic, may become international as soon as they are made the subject of a treaty, as they so frequently are. It should be added that almost any question, no matter how "domestic" in its nature originally, may become the subject of international cognizance by virtue of a treaty. There are many treaties of the United States which have related to such questions as the inheritance of land, the right to administer the estates of decedents, etc.; a very recent instance is a treaty between this country and Canada regarding the protection of migratory birds, a treaty which has been upheld as valid by the Supreme Court.[2]
None the less, the absolute right of a country to regulate these matters in its own discretion must be recognized as a matter of strict law. Any country, in the absence of treaty, may, at its pleasure, exclude foreigners from entering into its territory, for example. I think no one questions this.[3]
However, as a matter of fact and as a result of the development of the world's commerce, there is hardly any such question which remains exclusively domestic. For example, even in our {47} drastic Immigration Law of 1924,[4] there are various treaty rights of entry into the country for the purposes of commerce and so on which are expressly and in terms saved by the statute. Furthermore, there is, I suppose, hardly a country in the world which does not have various most-favored-nation treaties which directly affect tariffs.
Again, modern developments necessitate the extension of international discussions and agreements to matters previously undreamed of; the erection of wireless stations near frontiers is a very practical instance; there must be some kind of agreement to prevent jamming in the air. The negotiations about the opium traffic have gone to the length of discussions as to what areas in certain regions should be planted with the poppy; a more essentially domestic question than the crops to be grown within a country could hardly be imagined.
In my opinion, the Protocol follows the Covenant in its treatment of these domestic questions and goes no farther. The Covenant provides that if, upon reference to the Council, it is found that a dispute arises "out of a matter which by international law is solely within the domestic jurisdiction," the Council shall report to that effect and shall not even make a recommendation as to its settlement (Article 15, paragraph 8). In practice the Council will doubtless refer this question of law to the Permanent Court for an advisory opinion.[5]
The Protocol (Article 5, paragraphs 1 and 2) continues this provision and applies it also to any arbitration which takes place by its terms. It is provided that if one of the parties to the dispute claims that the dispute "or part thereof" arises out of a domestic question, the arbitrators must take the advice of the Permanent Court on the point. The opinion of the Permanent Court is binding on the arbitrators and if the Court holds that the matter is "domestic," the power of the arbitrators to decide {48} the question is at an end and they are confined merely to recording the Court's opinion.
The further provision of Article 5 on this question is the last paragraph of that Article, which reads as follows:[6]
"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 of the Covenant."
So far as this provision goes, I do not think that it adds anything to the effect of Article 11 of the Covenant. The matter would stand precisely where it does now, even if this last paragraph of Article 5 of the Protocol had been omitted.
Under Article 11 of the Covenant, both the Council and the Assembly have the right to consider any circumstance which threatens to disturb international peace. This does not mean any right of decision or even recommendation in any binding sense. What it does is to give to the Council or to the Assembly the privilege of attempting, by friendly offices, to avert war.
To my mind there is nothing very new in this; indeed, it is rather inherent in the idea of any international association for the prevention of war. After all, there is no doubt that these so-called domestic questions have their international repercussions. The case that was put by way of argument at Geneva was the control of the quinine of the world by the Dutch, which is said to be practically absolute. What would happen if the Dutch put an embargo upon the exportation of this drug? It would be idle to say that such an act, legal as it would be in the strict sense, would not have a profound effect upon civilization generally. Under Article 11,[7] such an act could be discussed before the Council with a representative of the Dutch Government present, in an effort to obtain some adjustment, some change in what had been done; but that would be all.
In 1898, the United States went to war with Spain over what {49} was, technically at least, from the point of view of Spain, a domestic question, namely, the internal situation in Cuba. Shortly before hostilities broke out, the six then Great Powers of Europe addressed to the United States a friendly note in the matter, to which this Government replied.[8] In principle, I cannot see any difference between such diplomatic correspondence and the discussion of the matter by the Council of the League, a discussion to which presumably Spain and not the United States would have been the party to object, for the question was a Spanish domestic question of which we were complaining.
There are other aspects of the treatment by the Protocol of domestic questions, in connection with the Covenants against War, and with Aggression, under which headings it will be discussed.[9]
[1] Article 15, paragraph 8.
[2] Missouri v. Holland, 252 U. S., 416.
[3] See Moore's Digest, Vol. IV, p. 67, et seq., also p. 151, et seq.
[4] Act of May 26, 1924.
[5] As in the case of the Tunis and Morocco nationality decrees, Advisory Opinion No. 4, February 7, 1923.
[6] This is one part of the so-called Japanese Amendment, as to which see infra, p. 64, et seq.
[7] of the Covenant.
[8] Foreign Relations (U. S.), 1898, pp. 740-741.
[9] See infra, p. 50 and p. 54. Also "The Japanese Amendment," p. 64.
{50}
CHAPTER IX.
COVENANTS AGAINST WAR.
Under the Protocol, the agreement of the parties thereto (Article 2) not to resort to war with one another is, if the terms of the Protocol are carried out, absolute. The only stated exceptions in Article 2 of the Protocol are (1) in case of resistance to acts of aggression and (2) when acting in agreement with the Council or the Assembly under the Covenant or the Protocol.
The first exception relates to defence and, if there be no aggression, as there would not be if the Protocol is lived up to, there would never be any need of defence against aggression.
The second exception, so far as it relates to a Party to the Protocol against whom force might be used, relates primarily to an aggressor, as defined in the Protocol. Of course this second exception in this regard goes beyond the question of defence, strictly speaking, because it would permit a State, not attacked, to go to the defence of another State attacked if and when the application of the Sanctions of the Protocol is called for by the Council[1]; but if the Parties to the Protocol carry out their agreements as therein expressed, there could never be any war between two or more of them.
There appears to be another possibility of the use of force within the language of this second exception; this is the case where a State, against which has gone a decision of the Court or an arbitral award, fails to carry out the decision or award.
The provision of the Covenant regarding such a situation is contained in Article 13, where it is said that the Council shall "propose what steps should be taken to give effect" to such decision or award. Obviously such proposals by the Council would not have any binding effect upon the Members of the League.
However, under the Covenant, the State in whose favor the decision or award had gone might lawfully have resorted to war against the State refusing to carry out the decision or award, {51} provided merely that it delayed resort to war for three months thereafter, under the language of Article 12 of the Covenant. In other words, if an award or decision was made and a State refused to carry it out, the successful party, under the Covenant agreed merely to refrain from war against the defeated party for a period of three months.
The Protocol (Article 4(6)), as interpreted by the Report to the Assembly, still permits the successful party to use force in such a case but only when the Council authorizes the use of force, such authorization being brought within the terms of Article 13 of the Covenant.
It is true that the Council is first to exert its influence to secure compliance with the decision or award and that, if the use of this influence fails, the Council may then propose measures short of force before authorizing the use of force itself.
Indeed, the Report[2] says that the Council may "institute[3] against the recalcitrant party collective sanctions of an economic or financial order." If this means that the Signatories to the Protocol are obligated to employ such sanctions in such a case when called on by the Council, I can only say that, in my opinion, the statement is not warranted by any language of the Protocol or of the Covenant.
However, the final effect of these provisions is that with the authorization of the Council the successful party may use force to execute a judicial decree or arbitral award.
Furthermore, the Report to the Assembly says that in such a case the defeated party could not resist, and that, if it did resist, it would become an aggressor against whom all the Sanctions of the Protocol might be brought into play.
To see how this would work out, let us suppose that in an arbitration between State A and State B, State A obtained an award to the effect that State B should pay to it the sum of twenty million dollars. Thereupon State B refuses to pay the award and, notwithstanding the efforts of the Council, maintains that {52} refusal, thereby violating its agreement in the Protocol (and in the Covenant also) to carry out any such award.
Thereupon the Council authorizes State A to use force to collect the money. It is no answer to this to say that the Council would not authorize the use of force, for we are considering what may be done, not what would be done. State A then begins to use force and, if State B resists at all, the entire machinery of the Sanctions of the Protocol can be brought into play and these include military and naval Sanctions.
Of course, such a result would be highly improbable, but I submit that it ought to be legally impossible. The provisions of the Protocol in this regard go very much farther than they ought to go, and very much farther, in my opinion, than the States of the world are now willing to go.
The case which I have supposed is one of a money judgment. A more difficult case would be one where the award was for the recovery by State A of certain territory in the possession of State B which State B thereupon refused to give up. In such a case there is more to be said for the use of force than in the other.
In any case, the refusal of a State to carry out the judicial decision or the arbitral award after solemnly agreeing to do so is a very serious breach of a treaty; but the idea of the authorization of force to execute such a decision seems to me to present a question of the very gravest character. My own view is against it. I am inclined to think that the penalty of expulsion from the League under the fourth paragraph of Article 16 of the Covenant should be the utmost permissible.
Whether this view of mine be correct or not, certainly the countries of the world are not going to accept any provision by which they will be obligated in advance to join in measures to enforce the result of an arbitration or of a litigation before the Permanent Court. Whether they will agree to a provision permitting the successful party, so to speak, to execute the decision or award on its own account is perhaps doubtful; but certainly they will go no farther, if as far; and this is one of the provisions {53} of the Protocol which will have to be changed before the document becomes a reality.
Subject to the foregoing exceptions, the general covenant under Article 2 of the Protocol not to go to war is, in my opinion all inclusive. It obviously includes all cases where there is a dispute of international cognizance, for in such cases all parties agree upon a final and binding method of decision and agree to carry out the decision. It also includes, as pointed out previously,[4] all cases in which one State would seek to change by force the status quo, or to prevent by force a lawful change in the status quo.[5] Neither the lawful maintenance of the status quo nor its lawful change would come within the general exceptions of Article 2.
Furthermore, the covenant against war in Article 2 would also exclude the going to war about domestic questions. All that any Signatory agrees to do regarding such a question, if, when raised internationally, it is not settled by negotiation, is to discuss it before the Council or the Assembly.[6] A State which did that would have fulfilled all its obligations regardless of any action or inaction as to the domestic question itself; and an attack made on it by any other State would then be aggression under the terms of the Protocol. There is no exception. As the Report to the Fifth Assembly says,[7] "Our purpose was to make war impossible, to kill it, to annihilate it." This, if lived up to by the Parties, the paper does, as among them.
The detailed provisions of Articles 7 to 10 inclusive of the Protocol confirm the views above expressed. The provisions of these Articles will be more specially considered in connection with the question of Aggression.[8]
[1] See the discussion on this point, infra, p. 72, et seq.
[2] Annex C, p. 180; see also pp. 168, 169.
[3] The word in the French text of the Report is "dclencher."
[4] p. 45.
[5] An instance of this would be if States A and B agreed on a cession of territory from one to the other, to which State C objected.
[6] Under Article 11 of the Covenant.
[7] p. 208, infra.
[8] p. 54, et seq.
{54}
CHAPTER X.
AGGRESSION.
The preamble to the Protocol asserts that a war of aggression is an international crime. I have discussed above[1] the agreement of the parties to the Protocol not to resort to war except in defence against aggression or in aid of defence against aggression or perhaps in execution of a judicial decision or arbitral award. This is the general covenant of Article 2 of the Protocol. It is this resort to war, contrary to the terms of the Protocol, which is the chief breach of the Protocol against which its chief Sanctions are ordered.
By Article 10 of the Protocol[2] every State which resorts to war in violation of the undertakings either in the Covenant or in the Protocol, is an aggressor.
It will be necessary to consider only the provisions of the Protocol forbidding a resort to war, for it would be impossible to have a resort to war contrary to the Covenant which would not also be a resort to war contrary to the Protocol. The provisions of the Protocol go farther than those of the Covenant in this regard.
It is true that there are in the Covenant certain engagements by Members of the League not to resort to war. These are found in Articles 12, 13 and 15; but it is unnecessary to consider them in detail, for any resort to war contrary to the provisions of those Articles of the Covenant would clearly also be contrary to the general engagements of Article 2 of the Protocol.
The Report to the Assembly[3] seems to infer that a violation of the obligation of Article 10 of the Covenant on the part of all Members of the League to respect the territorial integrity and political independence of other Members might be a resort to war not included in the language of the Protocol; but I think that {55} any such forcible violation would be within the terms of the Protocol also.
It is against the aggressor that the Sanctions of the Protocol are set up and accordingly the provisions of the Protocol defining an aggressor and the procedure for determining what State is an aggressor are of the utmost consequence.
The definitions of an aggressor under the Protocol are complex in their language though not in their fundamental idea, which is that aggression is a resort to war instead of to arbitration.[4] The language of the definitions is obscured by certain presumptions (Article 10) and by the procedure laid down for the determination of an aggressor.
The general definition of an aggressor in the first paragraph of Article 10 of the Protocol I have mentioned above. It is well, however, to quote it in full:
"Every State which resorts to war in violation of the undertakings contained in the Covenant or in the present Protocol is an aggressor. Violation of the rules laid down for a demilitarized zone shall be held equivalent to resort to war."
This is the general definition of principle. It relates back in its meaning to Article 2 of the Protocol, the general engagement not to resort to war. Beyond that, it makes the violation of the rules for an agreed demilitarized zone the equivalent of a resort to war, the two are assimilated.
The first question that arises regarding this general definition is whether the words "resort to war" mean necessarily an actual and technical state of war only, or whether they include all acts of violence and force, even if such acts did not in a particular case result in an actual state of war, because, for example, not resisted.
The view of the Report to the Assembly[5] in this matter is that such acts of violence are included in the expression. I am {56} inclined to agree with this view, though as a mere matter of language an argument to the contrary is possible.
Suppose, however, that there is an actual state of war; how is it to be determined which one of the two[6] belligerents is the aggressor?
The Protocol attempts to meet this difficulty by laying down two different methods of determining the aggressor. One is by creating certain presumptions, which I shall discuss later; the other is for the case in which none of the presumptions is applicable.
In this case, that is to say, in the absence of the presumptions, it is for the Council to determine the aggressor and, in order to come to such a determination, the Council must act unanimously under the general rule of Article 5 of the Covenant.
I have no doubt of this conclusion, which is the conclusion of the Report to the Assembly. It is true that the language of Article 10 of the Protocol is not as clear as it might be, since the duty and power of the Council to determine the aggressor are not directly stated, but rather to be inferred from the language.
What Article 10 of the Protocol says as to this in its last paragraph but two[7] is that, apart from the cases when there is a presumption,
"if the Council does not at once 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."
{57}
So that in those cases where the presumptions hereafter considered do not arise, it is the duty of the Council to determine the aggressor; it must act unanimously in coming to such a determination; as the Report to the Assembly says,
"Where there is no presumption, the Council has to declare the fact of aggression; a decision is necessary and must be taken unanimously";
and, if the Council is not unanimous, it must enjoin an armistice upon the belligerents.
Before coming to the procedure before the Council, I now enumerate those cases in which, because of the existence of certain facts, a State is "presumed" to be an aggressor; any such presumption can be upset only by the unanimous decision of the Council to the contrary. These cases are as follows:
1. If hostilities have broken out and a State has refused to submit the dispute to the procedure for pacific settlement contemplated by the Protocol.
2. If hostilities have broken out and a State has refused to comply with a decision, award, etc.
3. If hostilities have broken out and a State has disregarded a determination that the matter in dispute is a domestic matter and has not submitted the question for discussion by the Council or Assembly under Article 11 of the Covenant.
4. If hostilities have broken out and a State has violated the provisional measures against mobilization, etc., contemplated by Article 7 of the Protocol (and which will be mentioned later).
Certainly the theory of the first three of the four instances above mentioned is the theory stated by Herriot in his speech before the Assembly that the State that refuses arbitration is an aggressor.[8] In other words, law is substituted for force.
Now it is to be observed that in each of the four foregoing {58} cases hostilities must have broken out and in each one of them at least one additional fact must have occurred.
In other words, given certain facts, there is a presumption as to the aggressor; but who is to say, how it is to be determined, whether or not at any particular moment these facts exist? It is not sufficient to say that the facts will be open and notorious, for they might not be. Indeed, if we look critically at each one of what I may call the required facts, we find that doubt might arise.
Take the primary fact, which is always required for any presumption to arise; this fact is that hostilities shall have broken out. One's first impression might be that this could never be a matter of doubt; but this is not so. Take the case of Corfu, for example. Italian officers had been murdered in Greece by somebody; various individuals had been killed at Corfu by a bombardment of the Italian fleet. Had or had not hostilities broken out within the meaning of Article 10 of the Protocol? Surely the point is at least debatable.
Take the next required fact, that a State has refused to submit a dispute to the procedure for pacific settlement. It is very easy to suppose cases where there would be a difference of view as to this. A State might claim, for example, that the matter was a domestic question which it did not have to submit to the procedure for pacific settlement. There might be a difference of opinion as to whether or not the matter had been actually decided by the tribunal. It is not at all uncommon in municipal law for parties to disagree as to whether a particular question is or is not res judicata; there have been many litigations over this very point; and there have been international arbitrations in which it was raised.[9]
Similarly, difference of opinion might exist as to whether or not a State had disregarded a determination that the matter in dispute was domestic or as to whether or not a State had {59} submitted a question for discussion under Article 11 of the Covenant. Such differences of opinion could easily arise because of the non-formulation in precise terms of just what the dispute was. Parties do not always agree as to what it is they are differing about and they may in fact be at the same time differing as to more than one question. As to whether or not a State had violated the provisional measures against mobilization contemplated by Article 7 of the Protocol, that document itself recognizes that such a question would require investigation, and in such case and in such case only the Protocol gives the Council the power to determine the question of fact, acting by a two-thirds majority.
So we come back to the situation that a presumption as to the aggressor can exist only if certain facts exist; and that the existence of one or more of these facts may very likely be in doubt or dispute and that, with one exception, there is no procedure for determining such questions of fact so as to be able to say with certainty that the presumption does exist.
What is the answer to this difficulty? If we look at the matter technically, we must conclude that none of the presumptions created by Article 10 of the Protocol can ever arise unless the facts[10] were admitted by the two[11] disputants. Such an admission would mean, in other words, that one of the parties openly admitted that it was an aggressor.
If the facts were in dispute or, in other words, if the existence of the presumption was in dispute, the Council could not determine the aggressor on the basis of a presumption requiring the unanimous vote of the Council to upset it; but would be required to determine the aggressor under the general provision which was first mentioned, under which no presumption exists and when the Council is required by affirmative unanimous vote to determine the aggressor.
Here again, however, there would unquestionably be disputed facts; that is to say, unless one of the parties said that it was the aggressor, it would require an elaborate investigation to {60} determine under the language of Article 10 of the Protocol whether a State had resorted to war in violation of its undertaking, or had violated the rules laid down for a demilitarized zone. It is utterly impossible to suppose that the Council could ever immediately determine the aggressor under such circumstances by unanimous vote; and such determination must be immediate. The language of the text is: "at once"; and in the French: "dans le plus bref dlai."
Let us look at the matter concretely and take up the question of procedure, supposing an actual case before the Council. There is a crisis; hostilities have or are supposed to have broken out; there are two States which either are or are thought to be at war; the Council meets. Not only under the realities of the situation, but under the express language of the Protocol, the Council must act instantly; the peace of the world is at stake.
Now, under those circumstances, there could be only two situations. One would be when some Great Power, either by open and announced defiance or by its refusal even to meet with the Council, proclaimed itself an aggressor. In that case of course neither the language of Article 10 nor any other language would make any difference. The other situation would be that the two States were there before the Council, each claiming that the other was in the wrong, each disputing the allegations of fact made by the other's representative. In such case clearly no presumption could arise and in such case the Council could not ever immediately determine the aggressor by unanimous vote. The mere fact that it would require time to examine into the truth of the respective allegations would prevent this. So the Council, by the compelling facts of the situation and indeed in accordance with the strictest construction of the Protocol, would be constrained to declare and would declare an armistice.
Any dispute as to what State was guilty of aggression prior to that time would be put over for subsequent adjustment; the armistice would be laid down and would be obeyed. Of course, in theory, it could be violated and the violator of the armistice {61} would become the aggressor; but a State that was going to refuse or violate the armistice, knowing the procedure, would doubtless not go to the Council at all.
So, to my mind, the vital part of the procedure laid down by Article 10 for determining an aggressor is found in the provision giving the Council the power immediately to declare an armistice; and, under the procedure, this, in my judgment, is the only power that the Council would ever exercise, except in the case suggested, in which a State itself denounced itself as an aggressor.
I am aware that the framers of the Protocol are not in accord with these views. In their opinion, the presumptions of Article 10 establish "an automatic procedure which would not necessarily be based on a decision of the Council." They say that where a presumption has arisen and is not unanimously rejected by the Council, "the facts themselves decide who is an aggressor" and otherwise that "the Council has to declare the fact of aggression."
I can only say that their conclusions, while perhaps admissible as a mere matter of language and nothing but language, take no account of the inevitable certainty that there will always be at least two views of what the facts are; to put it from a legalistic viewpoint, tribunals do not deal with facts; they deal with what lawyers call facts, but which are merely conclusions based on such evidence as is available. This sort of a "fact" is arrived at only after a hearing or a trial of some kind; and to suppose that the Council could ever conduct such a hearing, and at the same time come to a unanimous and immediate conclusion is to suppose a contradiction in terms.[12]
So while from the language of Article 10 of the Protocol difficulty may arise in determining an aggressor under its provisions (for there might in any case be a disputed or doubtful question of fact; and the Council under the provisions of the Covenant would in general have to act unanimously) the Protocol provides a solution of any such difficulty by saying that if the Council does not immediately determine the aggressor, it must {62} (the language is mandatory) proceed to enjoin an armistice, to fix its terms and to supervise its execution, acting for these purposes by two-thirds majority. Then the Protocol provides that any belligerent which refuses the armistice or violates it shall be the aggressor.
These provisions regarding an armistice seem to me to meet any possible objection that might be raised to the absence of a more complete and detailed system of determining in fact and in law what State is an aggressor.
No matter what the presumptions were or even what procedure was laid down, it is clear that, after hostilities in any given case had actually commenced, there would be enormous difficulty for any tribunal whatever in laying down conclusively which State was the aggressor. After all, the vital thing is to prevent war; and the opening of hostilities, to be immediately followed by an armistice, would not be very much of a war. So I regard these provisions as to an armistice as the most ingenious [Transcriber's note: ingenuous?] and, except its statements of principle, the most important of all the provisions of Article 10 of the Protocol.
The power given to the Council to formulate an armistice would be the power exercised if hostilities broke out rather than the power of adjudging the aggressor; unless the aggression was openly admitted, which would mean that one of the parties to the Protocol really defied the others; and, in that case, of course, it would defy the terms of an armistice as well as any other terms. But in any other case a new consideration would immediately arise. The Council would formulate an armistice and in the absence of an open defiance by one State, or possibly by a group of States, of all the others, the armistice would introduce a new situation, a situation in which hostilities were not going on; and human experience shows that, given an armistice, the recommencement of hostilities on the old grounds is a real impossibility.
In the view that I take, the Sanctions of the Protocol become less important in the light of its provisions as to the determination of an aggressor, for it is only against an aggressor that the {63} main Sanctions of the Protocol can be brought into play; and these provisions for determining the aggressor really mean that an aggressor is a State or a combination of States which has finally and deliberately determined to begin war and to carry it on regardless of its most solemn engagements to the contrary. In other words, there could be no war as between the parties to the Protocol without a wilful, wanton and wicked disregard of its provisions.
[1] p. 50, et seq.
[2] First paragraph.
[3] Annex C, p. 156 at p. 186.
[4] I use the word here in its largest sense.
[5] Annex C, p. 156 at p. 187.
[6] Of course there may be more than two.
[7] The reason why I have used in regard to Article 10 of the Protocol this uncouth language, "its last paragraph but two," is that in the English text of Article 10 there is a textual error which is extremely confusing. Article 10 really consists of five paragraphs, and the second of these five paragraphs has two sub-heads or sub-paragraphs numbered 1 and 2. The third paragraph of Article 10, in referring to these two sub-heads of the second paragraph calls them "paragraphs 1 and 2." In other words, the first words of what is here referred to as the third paragraph of Article 10 (the paragraph which I call "the last paragraph but two") read as follows: "Apart from the cases dealt with in paragraphs 1 and 2 of the present Article." They should read something like this: "Apart from the cases dealt with in sub-heads 1 and 2 of the second paragraph of the present article." Compare the French text which is perfectly clear: "Hors les hypothses vises aux numeros 1 et 2 du prsent article." See the English and French Texts of Article 10 in full, infra, pp. 144, 145.
[8] September 5, 1924.
[9] e. g., the Pious Fund case reported in the Hague Arbitration Cases, p. 1, and the Interest Case between Russia and Turkey, op. cit., p. 260. These two cases are also in Stowell and Munro's International Cases, Vol. I, p. 58, et seq.
[10] I mean the facts from which the presumption as to the aggressor would arise.
[11] I assume only two, for convenience.
[12] In the Dogger Bank case, the Commission of Inquiry sat for more than two months. Hague Court Reports, Scott, p. 403.
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CHAPTER XI.
THE JAPANESE AMENDMENT.
During the framing of the Protocol of Geneva by the Committees of the Fifth Assembly of the League of Nations, the language of the document was changed by what has been called the Japanese Amendment; and while the provisions which constitute that amendment as part of the Protocol have been generally considered in the previous discussion in connection with the application of various Articles, still that amendment attained such prominence in the discussions in the Fifth Assembly and since, that it may well be separately reviewed.
The Japanese Amendment related to domestic questions, questions within the domestic jurisdiction of a State; and before coming to its terms, it will be well to see what the situation as to these domestic questions is under the Covenant, taken by itself.
The Covenant, as we have seen,[1] provided for the submission to the Council of all disputes between Members of the League which were not otherwise adjusted by some kind of agreement or by some kind of Tribunal. In regard to those disputes submitted to the Council, the eighth paragraph of Article 15 of the Covenant said that if one of the parties claimed, and if the Council found, that the dispute related to a question which by international law was entirely within the jurisdiction of a State, the Council should so report and make not even a recommendation regarding a settlement. In other words, if the dispute related to a domestic question and one of the parties to the dispute raised the point, the Council could not proceed at all to make any recommendation which would bind the parties to the dispute or either of them to anything whatever.
At the same time, under the Covenant, by Article 11, either the Council or the Assembly might consider any circumstance tending to threaten or disturb international peace. The language in this regard is general. It means no more than discussion and {65} suggestion, except perhaps publicity; but under this language of Article 11, the parties were left with their liberty of action in the matter; and indeed, under the Covenant, the Members of the League entered into no commitment against going to war in the case of a dispute about a domestic question.
So we may sum up the provisions of the Covenant as to a dispute regarding a domestic question by saying that while such a dispute might go to the Council,[2] still the Council,[2] if the point were raised, could make no recommendation about it; but the Council (or the Assembly) might take the matter into consideration as a subject of discussion when it threatened peace, with the hope and duty to preserve the peace if possible; but in regard to this the parties remained free to act as they might themselves finally determine.
The Protocol of course, as we have also seen,[3] makes a great change in this situation because it contains a general agreement by the parties not to resort to war, an agreement which is applicable to disputes about domestic questions to the same extent that it is applicable to disputes about international questions; this general agreement not to go to war includes all questions of both kinds.
Furthermore, the Protocol makes it very much more likely that disputes between Members of the League will go for a hearing to a Committee of Arbitrators than to the Council; we have seen[4] that the likelihood of any dispute going to the Council under the new rgime, for consideration on the merits, is remote. The functions of the Council regarding disputes are to some extent delegated to the Permanent Court of International Justice, but even more largely to Committees of Arbitrators agreed on or appointed ad hoc.
Now the Japanese amendment is not strictly a single amendment; it is in two parts. The first part is the last (third) paragraph of Article 5 of the Protocol, reading as follows:
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"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 of the Covenant."
We must bear in mind that by the second paragraph of Article 5, any Committee of Arbitrators, in its consideration of a dispute is subject to the same limitations concerning a dispute about a domestic question as are provided for the Council. The method of so limiting the Committee of Arbitrators is that the question of law is decided by the Permanent Court of International Justice, and if that Court decides that the question is domestic, the Committee of Arbitrators simply so declares and proceeds no farther.
What the paragraph of Article 5 above quoted says is that although neither the Council nor a Committee of Arbitrators may consider a dispute regarding a domestic question if the point is raised, still none the less the Council or the Assembly, under Article 11 of the Covenant, may consider the situation in its bearing upon the peace of the world. Now such consideration under Article 11 of the Covenant would have been possible without this statement, so that, to my mind, this portion of the Japanese amendment makes no change in that regard. The paragraph does not change the legal situation at all, but simply makes explicit what was otherwise implied.
The other portion of the Japanese Amendment is the clause which is added to sub-head 1 of the second paragraph of Article 10, beginning with the word "nevertheless."
In order to see just what this other portion of the Japanese Amendment is, I cite here the second paragraph of Article 10 (omitting certain phrases not here material) with the words of the Japanese Amendment italicised:
"In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare:
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1. If it * * * 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 State arises out of a matter which by international law is solely within the domestic jurisdiction of the latter State; 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."
The language of Article 10 of the Protocol is quite involved, I have already discussed it at some length,[5] endeavoring to show that its real effect differs greatly from the theory of its framers, a theory borne out, perhaps, by the language of Article 10 considered as language only. I sum up that theory as follows:
Laying down the general principle that a State which resorts to war contrary to the Covenant or to the Protocol is an aggressor, and prescribing a general procedure by which it is for the Council to decide, unanimously of course, whether such a violation has taken place (and in the absence of such unanimous decision to declare an armistice) none the less Article 10 limits or qualifies this general procedure by enumerating certain classes of cases in which the facts would supposedly be so open, so notorious, so impossible to question, that they would create a presumption as to the State which was the aggressor; and such presumption could be upset only by unanimous vote of the Council against it.
I repeat that this is the theory of MM. Benes and Politis; it is not mine.
My own view, heretofore expressed, is that in no case could the supposedly notorious facts create a presumption because there would always be a difference of opinion as to those very facts themselves.
But proceeding on the other theory, and looking only at the language, the presumptions are important; here it is necessary to refer to only one of them.
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This presumption arises when a State has "disregarded" a decision by the Council, by the Court or by the Arbitrators following the Court, that a dispute arises out of a domestic question and has also not submitted[6] the question to the Council or the Assembly for discussion, under Article 11 of the Covenant.
Before the Japanese amendment, the text was that the presumption arose when a State "disregarded" such a decision to the effect that the dispute arose out of a domestic question.
Now let us see what the difference between the two is, that is to say, the difference between the text prior to the Japanese amendment and the text with the Japanese amendment.
In either case the decision on the question of law has gone against the complaining State. The proper tribunal has decided that the question is a domestic question and that decision in either case is and remains conclusive.
In either case, the State "disregarding" that decision and going to war is an aggressor. We may see that this is so by supposing that the entire original text as well as the text of this portion of the Japanese amendment was stricken out.[7] Then, clearly, the State would be an aggressor under Article 2 of the Protocol and under the first paragraph of Article 10; and there is nothing either in the original text that we are considering or in the Japanese addition thereto which changes that conclusion.[8]
The difference then between the original text and the text with the amendment is this: in the original text, a complaining State disregarding such a binding decision as to the domestic character of the question was presumed an aggressor if it went {69} to war either before or after the consideration of the matter by the Council or the Assembly under Article 11 of the Covenant. Under the text as amended, such a State is presumed to be an aggressor only if it resorts to war before such consideration under that Article 11.
In other words, the difference between the original and amended texts would arise only in the following circumstances: State A brings a dispute against State B before a tribunal (Council, Committee of Arbitrators, etc.). The tribunal renders a binding decision that the dispute arises out of a domestic question. The complaining State, bound by that decision, then brings the matter before the Council or the Assembly under Article 11 of the Covenant and no adjustment results; thereupon the complaining State resorts to war.
Under those circumstances, in the original text, the State resorting to war would be presumed an aggressor, a presumption to be upset only by the unanimous vote of the Council against it. Under the amended text, the complaining State would be an aggressor, but there would be no presumption; and the determination that it was an aggressor would come on to be made by the Council, which would either have to vote unanimously that the complaining State was an aggressor, or else proclaim an armistice.
I confess that it is difficult to see why such a refined and subtle and technical distinction about the presumption of aggression should be made. If there is a binding decision by a tribunal that a dispute arises out of a domestic question, surely a complaining State, under the principles of the Protocol, is bound not to go to war, because it is legally wrong in its claim and has been so adjudged. Just why a State going to war under such circumstances should be presumed to be and be an aggressor if it goes to war before a discussion of the matter subsequent to the decision and not be presumed to be an aggressor but merely be an aggressor, if it goes to war after such discussion, is not logically to be explained.
However, the foregoing discussion resulting in such an {70} obscure and technical distinction is, as I intimated, based solely on the language of the Article and on the legalistic theory of its framers as to its meaning and result. Earlier in my discussion,[9] I pointed out that I do not agree with the conclusions of MM. Benes and Politis, for I do not think that the presumptions laid down in Article 10 of the Protocol would ever have any material bearing on the decision reached by the Council. In other words, repeating in substance what I said before, I believe that the power to declare an armistice is the only power under Article 10 of the Protocol which the Council would ever exercise, except in a case where a State itself denounced itself as an aggressor.
Furthermore, it seems to me that the very intricacies of the language of Article 10 of the Protocol are themselves a very real indication that my conclusion is correct.
As a matter of reality, I cannot see that the Japanese amendment in any conceivable case would cause any difference in what would happen. We must suppose that war has commenced, for unless there is a resort to war, Article 10 of the Protocol is out of the picture entirely. Assuming then a resort to war, there are, under Article 10, with all its provisions and exceptions and presumptions, only two real possibilities:
a. There is an open and admitted and defiant aggression.
b. There is a difference as to the facts and it follows that it is not possible for the Council at once to reach a unanimous conclusion in the case; accordingly the Council declares an armistice which each belligerent must accept or become an aggressor.
What these two cases come to is obviously one of two alternatives, namely, either some State is going on with its fighting, with its war, regardless of the Council and regardless of the Protocol, or else there is an armistice and the fighting stops. Under the first circumstance, the provisions as to presumptions and as to the decisions of the Council are alike of no {71} consequence; and, in the second case, the war ends with an armistice as soon as it commences.
The drafting of Article 10 of the Protocol is unfortunately obscure; but when the language of the whole Japanese amendment is carefully looked at, it seems to me that it certainly adds nothing to the powers of either the Council or the Assembly in considering disputes arising from domestic questions, and that the legal right of any State to determine and control its own domestic matters remains unquestioned; indeed, it may be said to remain more unquestioned than it is now; for, under the Protocol, that right cannot be questioned by the League, either in Council or in Assembly; it cannot be questioned by the Permanent Court or by Arbitrators; and it cannot be questioned by war. All that is possible is friendly discussion and consideration under Article 11 of the Covenant and that, so far as Members of the League are concerned, is possible now.
Of course it might be argued that the various possible decisions and presumptions under Article 10 of the Protocol might make some difference as to the charging of the costs of the aggression under Article 15 of the Protocol; but the possibilities involved are too remote to be worthy of discussion.
[1] Supra, p. 18, et seq.
[2] or the Assembly.
[3] Supra, p. 50, et seq.
[4] Supra, p. 23, et seq.
[5] pp. 54-63.
[6] The text says "previously." Presumably this means before hostilities broke out. It might mean before the "disregard" of the decision that the dispute was domestic. Precisely how a State could "disregard" such a decision, except by resort to war, is not very clear. The French is "qui aura pass outre un rapport," etc.
[7] That is, all the text above quoted as part of sub-head 1 of the second paragraph of Article 10, beginning "has disregarded a unanimous report of the Council."
[8] The Japanese proposal regarding this Article as it first stood, was to strike out all the words referring to the "domestic jurisdiction," etc.; the addition of the clause commencing "nevertheless" was a compromise; it would have been a much simpler result and a better one, I think, to have omitted the whole clause, as the Japanese proposed.
[9] pp. 61, 67.
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CHAPTER XII.
SANCTIONS.
The Protocol of Geneva provides for sanctions or penalties for its breach by a Signatory.
Before considering the main sanctions which are set up by the Protocol, it may be mentioned that there are certain provisional measures which may be taken which fall short of the chief sanctions.
Under Article 7, in the event of a dispute between Signatories they agree, pending its settlement, not to increase their armaments, take mobilization measures, etc., and the Council is given the right, upon complaint being made, to make enquiries and investigations as to the maintenance of these agreements, and to decide upon measures in regard thereto, so as to end a threatening situation. Similar powers are given to the Council under Article 8 concerning threats of aggression or preparations for war, and in all these cases, the Council may act by a two-thirds majority.
The preventive measures which the Council may take as to such preliminary matters are not precisely defined. It is to be pointed out, however, that a State violating the engagements of Article 7 or Article 8 would not be an aggressor against which the main sanctions of the Protocol could be directed, assuming that hostilities had not broken out. Accordingly, the measures which could be "decided upon" by the Council would perhaps be limited to those of warning, of advice and of publicity; certainly they could not be measures of force; and in my opinion, they could not go as far as sanctions of any kind, economic or otherwise; the General Report[1] speaks of "the evacuation of territories" as a possibly appropriate measure; this indicates that the "measures" are to be "taken" by the State guilty of violation of the agreements mentioned; certainly there would be no obligation on the part of any Signatory to take any steps against a violation of these agreements of Articles 7 and 8; but the {73} language is very vague and all doubt should be set at rest by changing it particularly as the Council may decide by a two-thirds vote.
In considering the main sanctions provided by the Protocol, the first point to be emphasized is that they cannot come into play until a state of war, in the real sense, exists; hostilities must have broken out, so that the world is confronted with fighting actually taking place. It is true that there is a theoretical exception to this in the fact that a violation of the rules of a demilitarized zone is equivalent to a resort to war; but this exception is more apparent than real for the violation of a demilitarized zone would be only a brief prelude to hostilities.
The second condition precedent to the application of the sanctions is the determination of the aggressor.[2] And in any case the determination by the Council as to which State is the aggressor must have taken place before the sanctions are to be applied.
This is laid down in the last paragraph of Article 10, which provides that the Council shall "call upon" the Signatories to apply the sanctions.[3] As the sanctions contemplated by the Protocol are in theory merely a development of the sanctions contemplated by Article 16 of the Covenant, it is interesting to note that this preliminary calling by the Council upon the States to apply the sanctions introduces a new system, at least a system which develops from the view taken by the Assembly under Article 16 of the Covenant in 1921; for in the elaborate resolutions then adopted,[4] it was stated, among other things, that the Council was to give merely an "opinion" as to whether there had been a breach of the Covenant by resort to war, but that it was for each State to decide "for itself" whether or not its duty to apply the sanctions provided by Article 16 of the Covenant had arisen.
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The reason for this development is easy to see. Even though the sanctions of the Protocol may in theory be the same as those of Article 16 of the Covenant, they are applicable to a very different state of facts. The sanctions of Article 16 of the Covenant were to be applied to any Member of the League which resorted to war in disregard of certain provisions of the Covenant in Articles 12, 13 and 15, and the difficulty of determining whether or not, in a given case, a resort to war was a violation of those other Articles of the Covenant was not solved, particularly as the Covenant does not preclude a resort to war in every case. Under the Protocol, however, every resort to war by the parties to it is forbidden (except by way of defense or in aid of defense or perhaps in execution of a judgment of some tribunal), and a procedure which, in theory at least and probably in practice, would always determine the aggressor, is provided. For if my view is correct, an "aggressor" is a State which openly and wilfully defies the other Signatories when summoned by the Council under Article 10 of the Protocol. Consequently, it is now for the Council, upon the determination of the aggressor, to call for the application of the sanctions.
Of course, in all cases of a serious decision such as this would be, the Council is not an outside body "calling" upon Governments to do something. The words used lead one almost unconsciously to visualize the Council as a sort of entity like a Court, laying down a rule of conduct for some one; but this is a false vision; for in any such case the Council is a group of representatives of Governments agreeing, in the first instance, as such representatives of their own Governments, upon a course of action to be taken by those very Governments pursuant to a treaty obligation. We must think of any such action by the Council as meaning primarily that the British representative and the French representative, and so on, agree that the respective countries which they represent will follow a certain course of action in accord. If the Council were composed of all the Members of the League, it would be proper to describe its action under such a provision as this as being a conference of the parties to the {75} treaty to decide as to what, if anything, those parties should do, and to come to such decision unanimously, if any decision is to be reached. It is only as to the Governments which are not represented on the Council that the Council "calls" for action; so far as the Governments represented on the Council are concerned, what they do is to agree upon a course of action.
In theory, as I have said, the sanctions of the Protocol are no more than a development of those of Article 16 of the Covenant. The language of the Protocol indeed, in Article 11, incorporates the provisions of Article 16 of the Covenant by reference.
No provisions of the Covenant have been more debated since it was written than those of Article 16. In 1921, various amendments to this Article of the Covenant were proposed, none of which has gone into force; and, as mentioned above, the Assembly then adopted various interpretative resolutions regarding Article 16 which, with the proposed amendments (one of which was textually modified in 1924), are provisionally in force.[5]
It is unnecessary to attempt any detailed consideration of the exact legal effect of Article 16 of the Covenant at the present time in view of these interpretative resolutions and proposed amendments; in general they are intended to make the system of the economic blockade more flexible in its application so far as may be consistent with the purpose of the first paragraph of Article 16 of the Covenant, namely, to institute a complete economic and financial boycott of an aggressor.
This first paragraph of Article 16 of the Covenant says also that the aggressor shall ipso facto be deemed to have committed an act of war against the other Members of the League; this provision does not create a state of war; it simply gives the other Members of the League the right to consider themselves at war with the aggressor if they see fit; this provision is supplemented by the language of Article 10 of the Protocol which gives to any signatory State called upon to apply sanctions the privilege of exercising the rights of a belligerent, if it chooses.
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Paragraph 2 of Article 16 of the Covenant made it the duty of the Council to "recommend" to the various governments what armed forces they should severally contribute for use in protecting the covenants of the League.
Now what Article 11 of the Protocol does in its first paragraph is to say that the obligations of all States in regard to the sanctions mentioned in paragraphs 1 and 2 of Article 16 of the Covenant will, when the call for the application of the sanctions is made by the Council, immediately become operative, in order that such sanctions may forthwith be employed against the aggressor.
So far as the first paragraph of Article 16 of the Covenant is concerned—the economic and financial blockade—I do not see that this first paragraph of Article 11 of the Protocol adds anything to that first paragraph of Article 16 of the Covenant, even when the former is read in connection with the second paragraph of Article 11 of the Protocol.
It is true that in the resolutions about the economic weapon in the Assembly of 1921, it was recognized that from practical points of view the application of the economic pressure cannot be made equally by all countries. But undoubtedly, subject to the practical difficulties mentioned, a definite obligation exists in Article 16 of the Covenant to impose economic sanctions against the aggressor, and, as I said, in my judgment this obligation is not changed by the Protocol; but it can now become an operative obligation only if and when the Council says so.
The vital question regarding sanctions under the Protocol arises under the second paragraph of Article 16 of the Covenant in connection with the first and second paragraphs of Article 11 of the Protocol. Indeed, it is because of this second paragraph of Article 11 of the Protocol that the question regarding the use of the British Fleet has been raised in England.
Article 16, paragraph 2 of the Covenant reads as follows:
"It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective naval, military or air force the Members of the League shall severally {77} contribute to the armed forces to be used to protect the covenants of the League."
Article 11, paragraphs 1 and 2 of the Protocol read as follows:
"As soon as the Council has called upon the signatory States to apply sanctions, as provided in the last paragraph of Article 10 of the present Protocol, the obligations of the said States, in regard to the sanctions of all kinds mentioned in paragraphs 1 and 2 of Article 16 of the Covenant, will immediately become operative in order that such sanctions may forthwith be employed against the aggressor.
"Those obligations shall be interpreted as obliging each of the signatory States to co-operate loyally and effectively in support of the Covenant of the League of Nations, and in resistance to any act of aggression, in the degree which its geographical position and its particular situation as regards armaments allow."
On its face, paragraph 2 of Article 11 of the Protocol merely interprets paragraph 2 of Article 16 of the Covenant; but unquestionably it greatly changes it. Under the provisions mentioned of the Covenant, the Council had merely the duty of recommendation as to forces to be contributed by Members of the League. Undoubtedly under Article 16 of the Covenant, paragraph 1, any Member of the League had the right, if it chose, to consider itself at war with an aggressor, but equally under that paragraph any Member of the League had the right, if it chose, not to consider itself at war with an aggressor. Consequently there was no duty whatever under that Article 16, not even a moral duty, in my judgment, on the part of any Member of the League to contribute any armed forces whatever. The Council had the duty (under Article 16, Paragraph 2, of the Covenant) of making a recommendation; but it was merely a recommendation, and there was no obligation of the Member of the League to which the recommendation applied; there was merely a possible privilege to the Member of the League to which the recommendation applied—and that is a very different thing.
Now, let us look at paragraph 2 of Article 11 of the Protocol, quoted above. Each signatory State is "to cooperate loyally and {78} effectively" not only "in support of the Covenant," but "in resistance to any act of aggression." Well, certainly resistance to an act of aggression means force and this fact is not qualified but emphasized by the words: "in the degree which its geographical position and its situation as regards armaments allow." I grant that these words have a qualifying effect in some cases. They would mean, for example, that if Denmark had no army, she could not be under any obligation to use infantry. But they also refer to the other side of that picture, that the British do have a navy, that is their particular situation as regards armaments, a very particular situation; and under this Article, as I read it, the British would be bound "loyally and effectively" to cooperate in resistance to an act of aggression in the degree which their particular naval situation allowed.
Furthermore, paragraph 1 of Article 11 of the Protocol says that the "obligations * * * in regard to the sanctions of all kinds mentioned" not only in paragraph 1 but also in paragraph 2 of Article 16 of the Covenant "will immediately become operative." This indicates that there are military, naval and air sanctions to be employed and that the parties to the Protocol are under obligations to employ them.
Now, it is no answer to this to say that as to the extent of the armed forces to be used, the signatory State has its own discretion; and it is true that there would be no international command, there would be no turning over of the forces of one country to the General Staff of another or to an international Staff of all; however, even that did not take place during the first three years of the World War, except with specific detachments. So, for example, the British could say that they would send five destroyers or ten cruisers under their own Admiral, or the Grand Fleet if they chose; but clearly it would be bad faith for them to say with this commitment that they would not send even a gunboat.
I am entirely satisfied that these provisions greatly extend the provisions of the Covenant; for the first time[6] there is {79} introduced in the League system a definite military commitment—definite in the sense that it is obligatory, and not in the sense that it is defined as to extent of force.[7]
It may be argued that the first paragraph of Article 13 of the Protocol looks somewhat the other way, but I do not think that it does. That paragraph merely provides that the parties to the Protocol, if they see fit, may give to the Council "undertakings"[8] as to the military forces which they would use in applying the sanctions of the document. There is no obligation to give any such undertaking; it is purely optional with each State. Doubtless if such an undertaking was given and accepted by the Council, the State giving it would at least not have to do anything more in the way of military action than provided in the undertaking; but as the giving of the undertaking is optional, the fact of its not having been given would not, in my opinion, limit or qualify the obligation "interpreted" in the second paragraph of Article 11 of the Protocol.
I point out here that the word "contingent" in the first paragraph of Article 13 of the Protocol does not relate to the obligatory character of the sanctions but to the necessary uncertainty as to the future existence of the breach required for their applicability (see the French text); and the debate in the Third Committee and more particularly the Report unanimously adopted by the Assembly, in its discussion of Article 11,[9] make it clear that the above interpretation as to the military sanctions is correct; uniform in obligation, they are flexible in application.
Consideration of the third paragraph of Article 11 of the Protocol in connection with the third paragraph of Article 16 of the Covenant tends to support the views already expressed. Without further elaboration, I call particular attention to the last clause of the paragraph of the Protocol mentioned and cite {80} the respective paragraphs of the two documents in parallel columns:
Paragraph 3 of Article 16 of Paragraph 3 of Article 11 of the Covenant. the Protocol.
"The Members of the League "In accordance with paragraph agree, further, that they will 3 of Article 16 of the mutually support one another Covenant the signatory States in the financial and economic give a joint and several measures which are taken undertaking to come to the under this Article, in order to assistance of the State attacked minimize the loss and or threatened, and to give each inconvenience resulting from the other mutual support by means above measures, and that they of facilities and reciprocal will mutually support one exchanges as regards the another in resisting any special provision of raw materials and measures aimed at one of their supplies of every kind, openings number by the Covenant-breaking of credits, transport and transit, State, and that they and for this purpose to take all will take the necessary steps to measures in their power to afford passage through their preserve the safety of territory to the forces of any communications by land and by sea of the Members of the League of the attacked or threatened which are co-operating to State." protect the covenants of the League."
There are certain other provisions of the Protocol regarding sanctions which should be mentioned at least for the sake of completeness.
It is the Council[10] which declares that sanctions are at an end and that "normal conditions be re-established" (Article 14).
To the "extreme limit of its capacity," all costs of an aggression are to be borne by the aggressor (Article 15). The language concerning the extent of the liability involved is very sweeping, going much farther than the categories of damage mentioned in Annex I of the Reparation clauses of the Treaty of Versailles.
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The plans to be drawn up by the council for the detailed application of the economic and financial sanctions are to be "communicated" to the Signatories—in other words, they are advisory, not binding (Article 12).
Here it should be said that the final words of this Article 12 mention "the Members of the League and the other signatory States." These words imply the possibility of States signatory to the Protocol which are non-Members of the League. As pointed out above,[11] no such possibility exists, in my opinion. Even if such a theoretic possibility existed, it would be absurd to suppose that any State would sign the Protocol, with obligations going beyond those of the Covenant, while still being outside the privileges of the Covenant; however, the question is of no special importance here.
The main sanctions of the Protocol, as among the Parties to the Protocol, may be thus summed up: a war of aggression is an international crime; a Signatory which either avows itself an aggressor or refuses an armistice after hostilities have broken out, commits this crime; and accordingly the other Signatories, upon the call of the Council, unite in the defence of the Signatory which is not the aggressor, according to their respective capacities; which means that if and to the extent that they are able to do so, they contribute by force to the defence against the aggression, as well as by economic and financial measures.
But in view of the other agreements of the Protocol regarding pacific settlement of disputes and its covenants against war, the chief sanctions of the Protocol would never come into play against a Signatory, unless that State finally decided to defy the public opinion of the world and to make into a scrap of paper its own solemn written pledge.
[1] Annex C, p. 156 at p. 196.
[2] If there were two parties to the conflict, either one or both might be aggressor. See Article 11 of the Protocol.
[3] I think this means upon all the Signatories. The system of the Protocol is flexible as to the extent to which the Sanctions are to be applied by a particular signatory; but all Signatories come under the same legal obligation.
[4] On October 4, 1921. Official Journal, October, 1921, Special Supplement No. 6, p. 24.
[5] See League of Nations Official Journal, October, 1921, Special Supplement No. 6, pp. 14-15, 24-26, also October, 1924, Special Supplement No. 21, p. 9.
[6] Except as to the possibilities of Article 10 of the Covenant, as to which see infra, p. 84, et seq.
[7] The debates in the Third Committee of the Fifth Assembly are of interest in this regard.
[8] The French is "engagements."
[9] Annex C, p. 156 at p. 197, et seq.
[10] by unanimous vote.
[11] p. 10, et seq.
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CHAPTER XIII.
SEPARATE DEFENSIVE AGREEMENTS.
The general character of the Protocol of Geneva is such that separate defensive agreements between the parties to it lose substantially all of their former importance. The Protocol itself is, among other things, a general defensive agreement; and under such an agreement, faithfully lived up to, substantially the only part that could be played by separate agreements would be to make more detailed and more regional, perhaps, in their obligation and execution, the general obligations binding all signatories.
The possibility of these separate defensive agreements is mentioned in Article 13 of the Protocol. It is laid down that they must be public; furthermore, action under them cannot take place until the Council "has called upon the signatory States to apply sanctions." Finally, there is a most significant provision which illustrates the relatively unimportant character of such separate agreements under the Protocol—any such agreement must remain open to all Members of the League which desire to accede thereto.
This last mentioned provision takes away every possible idea that such defensive agreements under the Protocol could be anything like the former "defensive" alliances. Obviously, a defensive agreement which is open to any Member of the League is merely a part of the general agreement; particularly is this so when the performance of the agreement depends and is conditioned upon the request of the Council.
Indeed, in view of the other provisions of the Protocol, it is very difficult to see any substantial difference between these so-called defensive agreements and the undertakings[1] which, by Article 13, States which are signatory to the Protocol may voluntarily give to the Council regarding the armed forces which might be used in the application of the sanctions. I say that the {83} two things are similar for this reason: if in a given case the Council decides that the military sanctions are to be applied any Signatory is then entitled, at least if it chooses, to use the whole of its armed forces against the aggressor. This being so, the use of a specified portion of these forces in any given case comes to just the same thing whether it arises from the general agreement to apply sanctions or from a particular undertaking with the Council or from a particular agreement with another Signatory.
We may go to this length in thinking of these defensive agreements hereafter; in view of the fact that they must be public that any Member of the League may adhere to them and that they cannot be performed until the Council of the League says so, there could be in such a paper no effective provision which would go beyond the engagements under the Protocol itself.
Article 13 of the Protocol says that these separate agreements may be acceded to by any Member of the League of Nations. This language would include a Member of the League which was not a signatory of the Protocol. Under Article 13, it is only the States signatory to the Protocol which may make separate agreements. The point is doubtless of no real importance; but it cannot be intended that these separate agreements, if any be made, shall be acceded to by States other than those bound by the Protocol, for any such separate agreement would be in reality a paper subsidiary to the Protocol.
[1] Whether these "undertakings" would have the same legal quality as a treaty is at least doubtful.
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CHAPTER XIV.
THE PROTOCOL AND ARTICLE TEN OF THE COVENANT.
It is to be remembered that in this portion of the discussion consideration is given only to the relations inter se of the Signatories to the Protocol.
As among these States the famous Article 10 of the Covenant will have lost all its significance.
Article 10 of the Covenant has two distinct aspects. The more important of these is the undertaking by the Members of the League to "preserve as against external aggression the territorial integrity and existing political independence" of other Members. Because of these guarantees Article 10 was objected to in this country and in Canada chiefly for the reason that it might involve the use of armed force by the guarantor States. The further idea that this use of armed force would necessarily come into play upon a decision of the Council of the League of Nations was largely fallacious and was practically removed by the resolution of the Assembly regarding Article 10.[1]
The other side of these guarantees of Article 10, which has perhaps not always been very well appreciated, is that the obligation of a guarantor State under Article 10 may be very limited indeed and may even be nothing at all, even in the case of a wilful attack. Article 10 goes only to two things, territorial integrity and political independence. If an aggressor State respects these two things it can do otherwise what it chooses, so far as the guarantor States are concerned. For example, under Article 10 alone and taking nothing else into consideration, one State could attack another, destroy every building in the country, blow up every mine, and lay waste every field, and then retire, saying: The territorial integrity of the country attacked is now preserved, and its remaining inhabitants retain their full political independence. Under such circumstances, no guarantor State under Article 10 of the Covenant of the League of Nations would be obliged to do anything.
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Now I say that under the Protocol any significance of Article 10, as among the parties to the Protocol, has disappeared; clearly this is so. Article 10, so to speak, waited, or at least might wait till the end of the war.[2] If the aggressor State did not in the Treaty of Peace or otherwise annex any territory and left the attacked State independent, Article 10 did nothing at all.[3] But the Protocol commences to work even before any war commences and certainly at its commencement; there must be no attack.[4] It is not a question of the final result of the attack; it is merely a question of the existence of the aggression; and it is then that all the other parties to the Protocol come to the defence of the attacked State. The lesser Article 10 of the Covenant is swallowed up in the greater Protocol.
The other aspect of Article 10 of the Covenant was the undertaking by each Member of the League to respect the territorial integrity and political independence of the other Members. This, of course, is an undertaking in regard only to the acts of the State giving it. Such a self-denying clause would be implied in the Covenant if it were not expressed and equally, of course, it is inherent in the Protocol.
Indeed, in the Protocol it was thought necessary to insert a provision regarding the political independence and territorial integrity, not of the attacked State but of the aggressor. All that is left now of Article 10, so far as the signatories to the Protocol inter se are concerned, is to be found in the second paragraph of Article 15 of the Protocol, which says that the territorial integrity and the political independence of the aggressor State shall not be affected by the application of the sanctions of the Protocol.
A development of the Covenant by which Article 10 becomes unimportant, except as a measure of protection for an aggressor, is perhaps the most remarkable and unforeseen of all possible developments.
[1] September 25, 1923. Technically, the resolution was not adopted, the vote not being unanimous, 29 in favor, one, Persia, opposed, and 22 absent or abstaining. League of Nations Official Journal, October, 1923, Special Supplement No. 11, p. 34.
[2] i. e., so far as the Guarantor States are concerned.
[3] In the debates of the First Committee of the Fourth Assembly it was asserted that "no forcible invasion" is possible without a violation of Article 10 of the Covenant; but in certain circumstances war is permissible under the Covenant (Article 15, Paragraph 7); and with a permissible war, there could be a permissible invasion. See Oppenheim, 3rd edition, Vol. 1, page 739. |
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