 |
[4] i. e., no aggression, in the sense intended by the Protocol.
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CHAPTER XV.
THE PROTOCOL AS TO NON-SIGNATORIES.
At the beginning of this discussion[1] it was pointed out that upon the coming into force of the Protocol, there would, in theory at least, and from the point of view of its provisions, be three classes of Powers in the world, to wit, the parties to the Protocol, the Members of the League not parties to the Protocol and the non-Members of the League, the last named of course being also not parties to the Protocol.
It should also be mentioned again that the possibility of this second class of States, namely, the Members of the League not parties to the Protocol, is a temporary possibility only. For certainly if the Protocol comes finally into force, its provisions will in due course be embodied in the Covenant, as indeed is contemplated by Article 1 of the Protocol; and thereupon those Members of the League who have not ratified the Protocol will either become parties to the amended Covenant or will, under the provisions of Article 26 of the Covenant, cease to be Members of the League.
However, temporarily, there will doubtless be certain Members of the League of Nations who do not ratify the Protocol and the relation of these States to others during this provisional period is to be considered.
So far as concerns the relations inter se of this temporary or provisional class of States (those which remain Members of the League without ratifying the Protocol) it may be said at once that these relations, from this point of view, will continue to be governed by the Covenant and by the Covenant alone. The Protocol does not make or purport to make any change in this regard; so that, as among those States, we might envisage during this temporary period the theoretic possibility of a war not forbidden by the Covenant, just as we might envisage the possibility, during that period, of a dispute among those Powers remaining {87} unsettled. It is, I suppose, fair to add that both of these speculations are here of juristic interest only.
Similarly, the relations of non-Members of the League inter se will continue, as they are now, to be governed neither by the Covenant nor by the Protocol. These States would not have bound themselves by either document and so far as concerns their relations with each other, neither the Covenant nor the protocol attempts to regulate them.
The only provision of either document which has any bearing in this regard is to be found in Article 17 of the Covenant, which says in substance that in case of a dispute between States not Members of the League, such non-Members shall be invited to become ad hoc members upon conditions laid down by the Council. If they refuse, the Council, under the last paragraph of Article 17 of the Covenant, may take measures toward the prevention of hostilities; but these measures would be in the nature of good offices or mediation only and could be accepted or rejected by the two non-Members of the League as they saw fit; they could decline them wholly and go to war at their pleasure.
There is indeed one question which suggests itself to the mind under Article 17 of the Covenant concerning a dispute between two non-Members of the League. Suppose they should be both invited for the purpose of settling the dispute to become members ad hoc, and one of them accepted the invitation and the other refused, would the dispute then be considered as being a dispute between a Member and a non-Member? The real answer to this question probably is that on issuing the invitation the Council would make it a condition that both parties to the dispute should accept it. The legal answer as to the possibility of the case supposed is a matter of some doubt. I incline to the view that the invitation contemplated by Article 17 of the Covenant in a case when the dispute is between two non-Members, is a joint invitation and a joint invitation only. I do not think that it is intended that a non-Member of the League may temporarily seek the protection and guarantees of the Covenant against another non-Member.
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However, the question is of interest only from the point of view of the meaning of language; if the possibility should arise, it would doubtless be taken care of by the Council.
Another and also comparatively unimportant point may be here noticed and that is in regard to the relations between the signatories to the Protocol and the Members of the League not signatory thereto, another phase of the temporary situation heretofore considered. As to this, it may be said very briefly that such relations would continue to be governed wholly by the Covenant. The Members of the League which do not ratify the Protocol could not during this temporary period be regarded as being in any way affected by what, as to them, would be in the nature of proposed amendments to the text of the Covenant itself. These non-Signatories of the Protocol would therefore continue to look only to the Covenant for the regulation of their relations with any Member of the League. The Protocol does not contemplate a League within a League; it simply contemplates, during this temporary phase, a situation where certain Members of the League had assumed certain obligations without any constraint or effect whatever upon such Members as might not choose to assume them.
The really vital question is as to the effect of the Protocol and of the Covenant upon non-Members of the League in their relations with Signatories to the Protocol.
Even assuming that the plans now proposed for the admission of Germany to the League are carried out, there will remain for a considerable period two Great Powers, the United States and Russia, outside the League; and there are two other States of occasional international importance, the admission of which to the League is not, so far as I know, presently contemplated, these being Mexico and Egypt.
Accordingly, the possible effect of the Covenant and the Protocol on non-Members of the League is one of very great consequence. It is a question which is being actively discussed in so far as it may have a bearing on the relations between Great Britain and the United States.
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It is unquestionably true that the Protocol may have a real effect on non-Members of the League. Of course there is a legal formula which correctly says that a treaty cannot bind States not parties thereto, res inter alios acta; but even in the strictest legal sense this formula is only part of the truth in international matters. Any one who questions this will be convinced by reading Roxburgh's International Conventions and Third States.[2] A treaty between State A and State B may harm State C or it may benefit State C, as the Treaty of Versailles benefited Denmark by the cession of Slesvig, though Denmark was a neutral and not a party to the Treaty of Peace.[3]
Let us consider the matter first from the point of view of the Covenant. There are sanctions which may be applied under the Covenant and the application of these sanctions might affect a non-Member of the League either because they were applied against that particular non-Member or because they were applied against some other State.
It is rather curious that this question has not been very much considered under the Covenant; interest in it has been greatly revived by the Protocol; but the possible realities under the Covenant are, it seems to me, in some respects more important than those under the Protocol alone.
In considering this question it is well to look at it from the concrete point of view with a specific instance or example before us.
The sanctions of the Covenant[4] are an economic and financial blockade. These sanctions may be applied either as against a Member of the League which resorts to war contrary to the provisions of the Covenant or they may be applied against a non-Member of the League which resorts to war against a Member after refusing to settle its dispute with that Member (Covenant, Article 17, paragraph 3).
Suppose at the time of the Corfu dispute, Italy had gone on {90} to war against Greece, and the British had deemed it their duty to apply an economic blockade against Italy.
Suppose another case; suppose that Russia attacked Poland and that the British deemed it their duty to apply the economic blockade against Russia. We are speaking here in both of these cases merely of the provisions of the Covenant; and the question raised is what attitude might the United States take in such a case as one of these.
I have suggested two instances for the reason that there is a slight difference between them. That difference lies in the fact that in the first instance supposed, Italy, as a Member of the League, would have agreed to the application of the sanctions; they would have been applied by the British as a result of Italy breaking her treaty. But in the second instance, Russia never having agreed to the Covenant, the sanctions would be applied by the British solely as a result of the British agreement to apply them and not because of any legal breach by Russia, however morally wrong her attack on Poland might be.
I do not think that the difference between the two supposed cases would make any difference legally in the attitude that the United States might take in the one case or the other. The blockade would arise from the provisions of the Covenant in either case. To that document the United States is not a party. In each case our correct legal position would be that our international rights were not limited by the agreement of others.
Accordingly, let us consider the case of the blockade of Russia by the British, recalling that, under the hypothesis, Russia has attacked Poland and that the economic and financial blockade of the first paragraph of Article 16 of the Covenant has come into full force. Now, so far as that blockade cut off relations between Great Britain and Russia, it would be none of our business. But the language of Article 16 includes
"the prevention of all financial, commercial or personal intercourse between the nationals (residents)[5] of the Covenant-breaking State (Russia, under the hypothesis; {91} see Covenant, Article 17) and the nationals (residents) of any other State, whether a Member of the League or not."
What this would mean would be that all intercourse between Russia and the United States would be cut off by the British Fleet so far as they could do it. The questions suggested are: Could the United States protest; and would we protest?
The first question is a question of law. Would the United States have the right under international law to object to such a blockade? As a preliminary to the answer to this question, it must be pointed out that a blockade of Russia by the British might result in two different situations. Russia could undoubtedly regard such a blockade as being war, and if she did, no other country, neither the United States nor any other country, could then object to the blockade. The reason for that is that, without going into the much debated question as to the "legality" of war, under present international law it can at least be said that a neutral may not object to the belligerent status of two countries at war with each other. Of course a neutral may object to the manner of carrying on the war, or to particular incidents during the fighting; a neutral may protest that a particular blockade is not binding because not effective, and so on; but these things are not immediately important here. The important thing here is that if the blockade resulted in war, we could not object to the fact of war and its incidents.
On the other hand, a blockade might continue merely as a blockade, without the technical status of war arising. This is, I suppose, not very likely in the case of the blockade of a Great Power, but still it is legally possible under the terms of the Covenant.
The situation created would be new under international law. It would have to be considered as arising wholly from treaty and consequently not a situation binding on Third States, but as to them simply a situation in which their rights were governed by the principles of international law. Under these rules, the nearest approach to such a situation is the so-called pacific blockade of the past.
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In my view, which is the view of the vast majority of writers on the question, Third States do not have to respect a pacific blockade. (See Oppenheim, 3rd edition, Vol. II, page 56.) Accordingly, it seems to me that the United States would be entitled to regard such a blockade as not affecting her commerce with Russia.[6]
If the United States took such a position, as probably she would, the practical value of such a blockade would be very largely diminished, for I do not think there is any doubt that the Members of the League would admit that the blockade only applied to such Third States outside the League of Nations as might acquiesce in it.
Under the Protocol, precisely the same legal situation as to the blockade of Russia exists as under the Covenant and the same conclusions would follow. However, the probability of such a blockade under the Protocol, without an actual state of war resulting, is much less than under the Covenant. The Protocol provides definitely for military sanctions and it can hardly be doubted, as a matter of reality, that if the sanctions of the Protocol commenced to be applied to a State in or out of the League and that State resisted, the result would be war as between that resisting State and at least those of the Members of the League, like Great Britain, that were taking a real part in the application of the sanctions.
And, as pointed out above, the legal situation is much clearer in the case of war than in the case of this economic and financial boycott of the Covenant. It would be much "easier"[7] to go to war than it would be to apply the economic and financial sanctions alone. The world has gotten more or less used, in a legal sense, to the legalities and illegalities of war; but there are no precedents as to the corresponding situations[8] in such a {93} blockade as has been suggested; and it is, above all, custom and general agreement that make international law.
I may sum up my views on this point as follows:
If under either the Covenant or the Protocol, the economic sanctions were applied either against a Member of the League or a non-Member of the League and the application of these sanctions did not result in war, the United States legally could, and very likely would, contend that any resulting blockade was not applicable to the United States and the commerce and intercourse of her residents; and this view would be accepted by the Members of the League as being legally sound; and the result of course would be that the practical effect of any such blockade would be very much weakened.
However, if the application of the sanctions either of the Covenant or of the Protocol resulted in war between the State against which the sanctions were applied and the States applying them, the United States could not object to that state of war, although of course it would have its rights as a neutral in such a war as in any other war and these neutral rights would not be affected by any provision of either the Covenant or the Protocol.
The next consideration is the possible application of sanctions against the United States. From the foregoing review of the provisions of the Covenant and of the Protocol it is evident that such action against the United States is possible from a theoretic point of view. It is, however, important here to repeat that there is no possible sanction in either paper against a non-Member of the League except after war breaks out, a war which the non-Member of the League has commenced against a Member or against a Signatory to the Protocol as the case may be. In other words, the sanctions of either paper could only become operative against the United States after the United States had gone to war against a Member of the League.
Continuing the theoretic view of the matter, it would be idle to discuss any difference between one kind of sanction and another in such a case. If the United States went to war with State A, a Member of the League, and any other State undertook to {94} apply economic or any other sanctions on behalf of State A and against the United States, it would here be regarded simply as an act of war, creating two or more enemies instead of one.
Perhaps from the common sense outlook, such contingencies are not worthy of discussion, for what they would mean if they happened would be either that there was another world war, in which case the provisions of no document would be very important, or else there would be some kind of a minor war such as that between the United States and Spain, in which the other Powers of the world would find some way of keeping their hands off, regardless of legalistic arguments based on the Covenant or on the Protocol or on both.
It may be suggested that in the foregoing discussion I have omitted any thought of the possibility of war between the United States and Japan; but I have kept that possibility in mind. Its theoretical possibilities, so far as they might exist by reason of the United States attacking Japan have been considered above.
Let us consider the opposite possibility, an attack by Japan on the United States.
Suppose, then, that Japan attempted to raise before the League the question of the treatment of her nationals by the United States; there is no way in which such a question could be considered by the League except under the vague general clauses of Article 11 of the Covenant; all that the League could do, even in theory, would be to ask if the United States cared to discuss the matter; and the United States would presumably decline to take part in any such discussion. Further, it may be supposed that the United States would not have the slightest desire to commence a war in the matter as the United States is satisfied with the situation as it is—it is Japan which is dissatisfied. The United States would merely refuse to discuss a question which it deemed domestic.
Suppose then that Japan went to the length of declaring war on the United States for this cause. While immaterial from the point of view of the United States, I cannot see that such a war would violate the Covenant in its letter; of course it would {95} violate its spirit of peace; but I do not think there is any specific provision of the Covenant which, in terms, forbids it.
The Protocol in this regard goes farther in its language. The general covenant not to resort to war in Article 2 includes such a resort to war, not only against a signatory, but also against a State which "accepts all the obligations hereinafter set out"; in other words, against a sort of ad hoc adherent to the Protocol (Article 16), but we may assume that these last words would not include the United States.
The preamble asserts that a war of aggression constitutes a violation of the solidarity of the members of the international community, and also an international crime. Article 10 of the Protocol says that every State which resorts to war in violation of the undertakings contained in the present Protocol is an aggressor; and in Article 8 the document goes to its greatest length, so far as non-Signatories are concerned, by saying that the signatory States undertake to abstain from any act which might constitute a threat of aggression against another State. These last words "against another State" are the important words, because they include every State in the world, not only a Signatory. Furthermore, in that same Article 8 any Signatory can bring to the notice of the Council its view that "another State" is making preparations for war, which of course would include another Signatory.
So it is perhaps arguable that under the Protocol an attack by a Signatory against a State which is not a Signatory might be an aggression and that the sanctions of the Protocol might be brought into play in favor of the non-Signatory. If that view be correct, then, in the case supposed, namely, an attack by Japan upon the United States, it would seem that, if the matter were brought before the Council by any Signatory (as it undoubtedly would be) the Council might declare Japan to be an aggressor under the Protocol; and it would then become the duty of the other Signatories to apply against Japan all the sanctions of the Protocol, at least unless the United States objected to such a course and preferred to go it alone.
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However, there is at least grave doubt as to all this. The provisions of Article 16 of the Protocol and of Article 17 of the Covenant rather indicate that a State which pays no attention to an invitation to become an ad hoc Member or Signatory takes its chances as they exist dehors the Covenant or the Protocol. I think myself that this is the better view. To suppose otherwise would be to suppose that States outside the League (or the Protocol) had all the advantages of States within, and none of the burdens or obligations, a difficult thing to envisage.
So, on the whole, I conclude that an attack by Japan upon the United States because of a "domestic" or other question would permit the Members of the League, both under the Covenant and under the Protocol, to be interested onlookers and nothing more.
[1] Supra, p. 13.
[2] Longmans, Green & Co., 1917.
[3] A subsequent treaty between Denmark and the Principal Allied Powers confirmed the cession. A. J. I. L. Supplement 1923, Vol. XVII, p. 42.
[4] Article 16.
[5] The discussions in the Assembly of Article 16 of the Covenant show that the word "nationals" is to be read as "residents."
[6] See Moore's Digest, Vol. VII, pp. 135-142.
[7] That is, in the sense that there would to some extent be known and applicable rules of conduct for all States.
[8] Innumerable questions of difficulty as to private contracts might be suggested; but I am thinking here of relations between States.
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CHAPTER XVI.
THE DISARMAMENT CONFERENCE.
Under Article 17 of the Protocol, a Disarmament Conference to which all States of the world are to be invited is to meet at Geneva on June 15th, 1925. It is made the duty of the Council to draw up a general programme for reduction and limitation of armaments to be laid before the Conference and to be communicated to the various Governments not later than March 15th, 1925. The provision to this effect says that the Council shall give due regard to the undertakings of the Protocol regarding sanctions, but the preparation of this general programme is in substantial accord with Article 8 of the Covenant.
The Assembly adopted a quite elaborate resolution[1] regarding this Conference. This resolution makes seven or eight suggestions in general terms for the agenda of the Disarmament Conference. While the resolution was adopted, it was pointed out in the discussion that the Council has a perfectly free hand in the matter and that the requests of the Assembly regarding the agenda were nothing more than requests. There is perhaps no occasion to go over them in detail, but one or two points may be mentioned.
The matter of demilitarized zones figures in this Assembly list. As such zones are specifically mentioned in Articles 9 and 10 of the Protocol there is no doubt that this is one of the questions that would be on the agenda. Another suggestion of the Assembly for the agenda of the Conference is "the control and investigation of armaments in the contracting States." Such control and investigation were a part of the so-called American Plan,[2] and in view of the fact that the control and investigation of the armaments of the former enemy States are now before the League, there can be no doubt that this matter also would be on the agenda of the Disarmament Conference prepared by the Council.
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It was pointed out previously[3] that the date of the Disarmament Conference may be postponed. It now seems very likely that it will be.[4] Indeed, I feel that there was a little too much optimism at Geneva in fixing the date as early as June 15th, 1925, involving the completion of a programme by March 15th.
Of course, in getting up a programme of general disarmament, and an agenda for the Conference on Disarmament, it is true that the Council would have available the advice of the Permanent Military Commission and of the different bureaus of the Secretariat. Even so, the task of finishing these preparations in three or four months, getting them approved by the Council and also by at least the chief of the interested Governments, is one that seems to me to be very doubtful of accomplishment.
It is perhaps not generally understood what an amount of work and how great a number of questions are involved in such discussions as are proposed. There are something like twenty European Governments that are vitally interested. Some of these Governments have quite different points of view and all of them have their military, naval, air and chemical programmes in force and subject to the control of their own Parliaments.[4] The idea of a general reduction of armaments involves, at least provisionally, the recasting of the entire military system of Europe. It is complicated by numerous possibilities of regional agreements which in themselves would create new problems of complexity.
Furthermore, it is not generally recognized that a great deal of the work of such a Conference as this has to be done in advance. Doubtless no Conference in plenary session ever drew up a paper; no Legislature ever wrote a law. The utmost that any such body can do is to consider concrete proposals drawn up often by one individual, but certainly always by very small groups. I venture to say that ten lawyers could hardly draw a {99} deed without appointing a sub-committee. The success or failure of the Disarmament Conference will very largely depend on the care and judgment used in the preparations for its meeting.
We can look back on the Washington Conference and see the truth of some of these observations there. That Conference dealt with only a portion of the field of naval armaments, among only five powers, only three of which had any substantial naval force. The naval staffs of the countries particularly interested had to prepare in advance elaborate studies, and yet with all this the Conference lasted nearly three months. Certainly the task of a general conference on disarmament is very much greater than that of the Washington Conference was.
It took nearly four months to draw up the Treaty of Versailles, which is by far the most elaborate and complex international agreement ever written. In the circumstances this was a remarkably short time. The most serious detailed criticism that I have seen of the time involved suggests that it might have been two or three weeks less. It is to be remembered, however, that the Peace Conference worked at that time under a perfectly enormous pressure from all sides to complete its task, which, as a matter of fact, would never have been completed within anything like the time taken if the decisions had not finally been left to three or four men to take.
I need not dwell further on the difficulties of the details. Any one who reads the Disarmament Treaty drawn up at the Washington Conference will appreciate something of their nature; but, looking at the matter from the larger point of view, there is a question of real statesmanship involved. The possible field to be covered by a general conference on disarmament cannot perhaps be limited; but the extent to which the first discussion shall go will determine its success or failure. If it attempts to go too far, that will be fatal; if, on the other hand, the attempt is only to go a short distance now and to continue on the road further later on, the Conference may be a success, despite the fact that it will meet with the criticisms of those who want to do everything at once.
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The question of a permanent, or rather of a recurrent, Conference on Disarmament, as proposed by the so-called American Plan,[6] is one that is inevitably bound to come up at any such Conference, for whatever the Conference does or whatever it tries to do, it will have to leave much undone. Many questions will remain open, many changes of the future will not be foreseen, and those who meet in the Conference will see when they end their work that they have only begun it.
It is also to be noted again that the Conference is to fix the period within which the plan of reduction which it adopts is to be carried out. If within that time the plan is not carried out, the Council is to make a declaration rendering the Protocol null and void. The Conference is also to lay down the grounds on which the Council may make such a declaration.
In other words, the Protocol itself is to depend wholly upon the work of the Conference; it is to the Conference that the whole responsibility is transferred. If the Conference does not adopt the plan, and then if that plan is not carried out[7] within the time and on the conditions that the Conference declares, the Protocol falls.
Never, I venture to say, has any important treaty ever been drawn up depending upon a more impressive condition subsequent.
[1] See Annex D, p. 210 at p. 213, et seq.
[2] Annex F, p. 263.
[3] p. 5.
[4] This was written before the meeting of the Council in Rome in December, 1924. The Disarmament Conference certainly cannot meet before 1926. The present situation of the preliminaries is stated in a note to the Resolution of the Council of October 3, 1924, infra, p. 215.
[5] For a statement of existing European armaments, see note to page 100.
[6] Annex F, p. 263.
[7] See the discussion as to this, supra, p. 7, showing that the "plan" will be another Treaty or Treaties and that the "carrying out" probably means ratification thereof.
NOTE.—A statement of existing European Forces was made to Parliament on June 18, 1924 (Hansard, Parliamentary Debates [Commons], N. S., Vol. 174, page 2151). It gave the following figures:
Great Britain ........ 155,935 Latvia ............... 20,000 Germany .............. 100,000 Lithuania ............ 15,000 Austria .............. 21,500 Poland ............... 250,000 Hungary .............. 35,000 Norway ............... 16,000 Jugo Slavia .......... 130,000 Sweden ............... 32,000 Rumania .............. 125,000 Denmark .............. 27,000 Czecho Slovakia ...... 149,877 Greece ............... 110,000 Netherlands .......... 163,262 Bulgaria ............. 20,000 Italy ................ 250,000 Turkey ............... 88,000 Switzerland .......... 500,000 France ............... 732,248 Soviet Union ......... 1,003,000 Belgium .............. 86,531 Finland .............. 30,000 Spain ................ 240,113 Esthonia ............. 16,000 Portugal ............. 40,000
Total armed forces in Europe, 1924 ........... 4,356,466
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CHAPTER XVII.
DEMILITARIZED ZONES.
Emphasis is laid by the Protocol on the creation and maintenance of demilitarized zones along frontiers. Article 9 of the Protocol treats of such zones, and their violation is, by Article 10 made the equivalent of a resort to war.
Any question of the real value, in the strict military sense, of agreements for demilitarized zones, may be left at one side. Undoubtedly, expert opinions differ in this matter. At least it may be said that such agreements have a value in the realm of feeling, which is as much a reality in international affairs as is a fleet of battleships.
If countries feel more secure because of the creation of such zones, certainly agreements regarding them are worth while on each side of a frontier.
As mentioned above, the question of demilitarized zones will certainly be one of the items of the agenda of the Conference on Disarmament. There are quite a number of precedents for the creation of such zones in recent international agreements. For example, the Treaty of Versailles[1] creates a demilitarized zone for fifty kilometres east of the Rhine. The Aaland Islands were demilitarized by the Treaty[2] which attributed them to Finland; and the Treaty of Lausanne[3] creates certain demilitarized zones, not only on each side of the Straits, but also in Western Thrace.
It is such agreements as these that are referred to in Article 9 of the Protocol as those "already existing under the terms of certain treaties." It is these zones, and others which may be established by consent of the neighboring States, which, according to Article 9, may be placed under a system of supervision by the League, either temporary or permanent. Obviously, any such supervision would come about by means of the voluntary agreement of the States concerned; and, in view of the fact that the Protocol makes a violation of a demilitarized zone the {102} equivalent of a resort to war (Article 10), supervision by the League of the carrying out of these essential agreements would seem to be highly desirable.
Indeed, it may be said here that it will almost certainly be found that a system of international inspection will inevitably be a part of agreements for the reduction and limitation of armaments. A system of general international inspection was suggested as one of the parts of the so-called American Plan,[4] and the proposal for a system of supervision of demilitarized zones under the League of Nations is a part of that general idea.
I do not think it should be lost sight of that the thought of certain places where violence is forbidden has roots which go far back in human history. The idea of "sanctuary" is as old as any records that we have; and, if it be thought that I am going very far afield in speaking of sanctuary, I mention that the legal development of this general notion is a very early development. At least as long ago as Anglo-Saxon law in England, it was a peculiarly heinous offence to commit a crime on the King's Highway. It was a much more serious matter to break the peace there than elsewhere, because it was a breach of the King's peace; and this notion of the King's peace is said by high authority to be as old as the Salic Law.
We have heard much in the past of strategic frontiers. A great deal of ability and learning have been devoted toward the problem of making frontiers available for attack or for defence. It is perhaps true, as some critics appear to think, that the development of war in the air and of chemical warfare has made questions of strategic frontiers in general less important than heretofore. Perhaps that is so. I suggest, however, that even if it is so, that same ability and learning may be able to find in a combination of the ideas of demilitarized zones and international supervision a real solution of the problems arising from these new methods and discoveries; and, as I have pointed out, there is a very ancient human feeling behind this whole idea of peaceful places, on which popular support for such a programme may be based.
[1] Articles 42 to 44.
[2] A. J. I. L. Supplement 1923, Vol. XVII, p. 1.
[3] A. J. I. L., Vol. XVIII, January, 1924, pp. 58, 63.
[4] Annex F, p. 263.
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CHAPTER XVIII.
SECURITY AND THE PROTOCOL.
For me to discuss the bearing of the Protocol of Geneva upon the security of States means that I go outside my brief.
No technical juristic reasoning is applicable to a feeling which lies at the heart of national sentiments, sentiments of patriotism and of devotion to country, which are as deep rooted in the souls of millions as are the love of family and the belief in religion.
This matter of security is in verity a matter of national feeling, a state of mind in the truest sense. For no human agency, no belief, no will, outside of the country concerned, can alter or affect it. Ourselves alone must say, we and our rulers, whether or not we are in fact secure—if we say yes, that is enough; but if we say no, it is not for any one else to question, much less for any one else to seek to argue the matter.
So I shall merely seek to state the theory of the Protocol in regard to this matter of security. That theory is this: if the nations of the world will agree to outlaw war, if they will agree to substitute law for force, to settle by pacific means all disputes among them, if they will agree to unite against any people which so agrees but then betrays humanity by tearing up its own agreement, then we may develop intra-nationally a belief in security, a confidence in a settled order, a hope for the future, which will slowly but inevitably disarm the forces for war and lift the curtain on a new day.
Such is the theory of the Protocol of Geneva.
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CHAPTER XIX.
INTERPRETATION OF THE PROTOCOL.
Article 20 of the Protocol provides that any dispute as to its interpretation shall be submitted to the Permanent Court of International Justice. No provision similar to this is to be found in the Covenant.
The importance of this provision does not consist chiefly in its application to the Protocol. Even if and when the Protocol comes into effect the provision in itself will not be very important, because the Protocol is only a temporary document to be transformed into amendments to the Covenant. If these amendments include the incorporation into the Covenant of a similar provision to the effect that any dispute as to its interpretation shall be submitted to the Permanent Court of International Justice, such an amendment will be of supreme importance. With the Protocol embodied in the Covenant, the latter document will be by far the most important international treaty in existence. If all questions of its interpretation are to be submitted to the Permanent Court, that tribunal will have judicial powers of the most far-reaching character.
It is true that the extension of the powers of the Court so that they would include the interpretation of the Covenant is logical in so far as it relates to the settlement of disputes between Members of the League or other States; but the Covenant contains many other provisions bearing only indirectly upon such disputes. The Covenant provides for the Council and the Assembly and for their meetings, their powers and procedure, powers which under Articles 11 and 19 of the Covenant, for example, are expressed in the most general terms. The Covenant provides for the mandate system for certain territories and for the supervision by the League of numerous international agreements and bureaus of all sorts. Now, in most of these matters the method of interpreting the Covenant has been by consent. Members of the Council or, as the case may be, of the Assembly agree on what {105} they may do and proceed accordingly. If differences of view as to the interpretation of the Covenant in this regard are to be submitted to the Permanent Court, that tribunal would have in some respects a power superior to that of either the Council or the Assembly.
Let me give an instance. The fifth paragraph of Article 4 of the Covenant provides as follows:
"Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a Member at any meeting of the Council during the consideration of matters specially affecting the interest of that Member of the League."
This paragraph gave rise to a difference of opinion as to what States are entitled to sit on the Council when it considered questions arising under Article 213 of the Treaty of Versailles and similar Articles in the other Peace Treaties relating to the investigations by the Council of the armaments of Germany and other countries. When the question came up, the Council took the opinion of Jurists on it and reached a common sense result.[1] Under a general clause giving jurisdiction to the Court in all matters of interpretation,[2] it would seem that any Member of the League could require a question as to the composition of the Council on a particular occasion to be decided by the Court before the Council could meet. It is obvious that any such method of regulating procedure would give rise to impossibilities which should be avoided.
[1] See League of Nations Official Journal, July, 1924, p. 922 and Cmd. 2287 (Miscellaneous No. 20, 1924), p. 16.
[2] Many people suppose that the Supreme Court of the United States has such general powers regarding our Constitution, but this is not so. Read, for example, Article I, Section 5 of the Constitution; and see Massachusetts v. Melton, 262 U. S., 447.
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CHAPTER XX.
THE "AMENDED" COVENANT.
I trust that no one appreciates better than myself that examination of a document bit by bit and piece by piece tends to blind the vision. One sees the trees and not the forest. Worse than that, one gets a false vision, a picture, if I may change the metaphor, of the buttons on the coat but not of the man wearing the coat and still less of the soul within the man.
A critical examination of an international legal document leads to a discussion of trivialities and to hypotheses of almost impossible possibilities. Of course it is true that the carrying out of a great international agreement in the light of the facts and conditions of international life as they arise does not proceed along the technical lines that I have followed, but rather along those lines of policy which really control international action. I do not mean necessarily selfish policy, but policy in the larger sense of decisions based upon the best judgment of those in power for the time being.
What really ought to be done in studying any proposal such as the Protocol of Geneva, is to realize, if possible, the ultimate purpose of the document and to visualize, so far as we can, what would happen if it came into force, not so much what might happen under a particular phrase, but how the international relations of the world would proceed if the whole agreement were a reality.
I have mentioned more than once that the Protocol of Geneva contemplates that its provisions shall form part of the Covenant; in other words, that the two documents shall be amalgamated, forming an amended Covenant. With the hope of facilitating a general view, I have endeavored to put the two documents together in the form of an "amended" Covenant, and the result of this effort is set out below.[1]
Looking at the text of this "amended" Covenant, one may observe that while twenty of the present twenty-six Articles {107} remain unchanged in form, Articles 12 to 17, inclusive, are expanded and somewhat rewritten; and eight Articles are added; and I do not think that the text of the "amended" Covenant could be phrased in much less language than it appears below.
Of course the length of a document in itself is not of much consequence; but it is not unimportant to observe that the "amended" Covenant is very much longer than the Covenant as it now reads. This fact, I say, is important, because it is the visible evidence of a reality. The Protocol of Geneva is not a mere completion of the provisions of the Covenant. Advocates of the Protocol make a very serious mistake when they erroneously say that the Protocol of Geneva is merely a rounding out of incomplete and partial agreements of the Covenant.
And it must be borne in mind that new or varied phrases in one Article may change the whole; the amended Covenant is altered not only in those Articles which may be textually amended, but throughout; I attempted to show this in detail as to Article 10 of the Covenant[2]; like any other document, the entire new paper must be read together.
What the Protocol of Geneva does is to create a new and a different League of Nations. It is true that what I may call the procedural and structural functions of the League are not changed; but the system of international relations which is now set up under the League is so much changed that one may properly say that it is an entirely new and different system.
To my mind, there are three outstanding features of the "amended" Covenant. It creates a complete system of compulsory arbitration; it consecrates the legality of the status quo; and it is a general defensive alliance.
Now let us compare these three features of the "amended" Covenant with the ideas of the existing Covenant.
The first mentioned, the system of compulsory arbitration, is by far the most important and the one that should be the starting point for any view of the "amended" Covenant as a whole. In this arbitration system is contained the idea of outlawry of {108} war which the document embodies. The arbitration of disputes under the new system is to take the place of war, which is outlawed.
All that the Covenant did was to forbid some wars, to provide for delay in every case, and otherwise to rely wholly upon voluntary arbitration and, in cases where they could be obtained, upon unanimous recommendations of the Council. The framers of the Covenant were most careful to avoid the idea of compulsory arbitration, for all that even the unanimous recommendation of the Council could do was to prevent hostilities.
Under the "amended" Covenant, the defensive alliance of the Members of the League becomes complete. It is intended to see to it that arbitral decrees are carried out; to see to it that the status quo remains untouched, except by voluntary agreement; and to see to it that the violator is met by the combined forces of other States.
Contrast the provisions of the Covenant, which contemplate no concerted action, unless agreed to at the time, other than economic and financial pressure; and the preservation of the status quo only so far as Article 10 of the Covenant extends.
It would be unfair and untrue to call this new system a super-state, for it is nothing of the sort; but it would be in a sense untrue also to say that this new system is merely a development of the Covenant itself; it is the sort of change that one might call a development if it had taken two or three generations or a century to bring it about; but not properly to be called a development when it all comes at once.
The natural conclusion to be reached is that such a complete change cannot be realized at this time, and that is the sound conclusion. That a system of law should be built up governing the international relations of the States of the world, by which their differences should be adjusted by the orderly processes of legality, excluding as a method of adjustment the chaos of war, may be admitted. Thus far, the changes proposed by the Protocol of Geneva are desirable; the question is merely as to the length to which the countries of the world are willing to go in {109} this direction at this time; and I include as a part of this development, the outlawry of war, the agreement that war is not to be resorted to by any State, that it should disappear from international relations, except in so far as force must necessarily remain as defence.
It is to be hoped that this part of the Protocol may stand; and it must be admitted that there is inherently and ipso facto to some extent a consecration of the legality of the status quo by the outlawry of war and by peaceful settlement of disputes by legal means.
On the other hand, various features of what I may call the defensive alliance portion of the Protocol seem to me to be impossible and at this time inadvisable. They are supposed to flow logically from the system of compulsory arbitration; and certainly the problem which they attempt to solve does follow logically from any system of compulsory arbitration and outlawry of war. If we assume war to be outlawed and a system by which there is to be a legal settlement of disputes in place of war, the question of course arises: Well, what is to happen in a given case if some State which has accepted this system and has agreed to it should refuse to abide by it, should not carry out an award or decision or should even take up arms against it, what then?
The Continental mind very logically answers this question by saying there must be a system of execution of decrees and that if you outlaw war, you must have a combination for defence. This is true from the point of view of logic; but it is not true from the point of view of life. Compulsory arbitration and outlawry of war are untried ideas, and we cannot say now, under all circumstances, what should be done in the course of their working, if they are put to work; much less can Nations now bind themselves as to a definite and complete course of action under all possible and varying future circumstances. That such a system of concerted action against aggression as is proposed by the Protocol of Geneva may perhaps in time be worked out along with the growth and development of the ideas of outlawry of {110} war and of arbitration, may be admitted. That it can be done now is, to my mind, contrary to the realities of life and to the lessons of history.
There is another phase of this last discussion which should be particularly noticed. It is impossible for any such agreement for concerted action not to have a direct bearing upon countries which are not parties to the agreement; in other words, Russia and the United States. We must admit at least the theoretic possibility of a conflict between one of the Members of the League and one of these two Great Powers, insisting, if we will, that such a possibility is highly remote so far as the United States is concerned, and utterly unknowable so far as Russia is concerned; but none the less a possibility.
And certainly, in view of that possibility, any provisions of a document which looks toward force as a last resort of defence should, in my judgment, be drawn with the utmost care to avoid the idea of a possible conflict between the parties to the document on the one hand and an outside State on the other. Outlawry of war and arbitration are things to be agreed upon and not to be compelled against those who are unwilling to agree; for the breach of such an agreement is a much more serious and a very different thing than a refusal to arbitrate, or even than going to war when there is no agreement.
That the hospitality, if I may call it so, of the League of Nations should be extended to States which are unwilling to join it; that its facilities should be offered to these States for the settlement of disputes in every case where they are willing to accept them; that the covenants of the Members of the League for justice toward an outside State should be as explicit and complete as its covenants toward a Member, I quite agree; the covenants of the Members of the League should be covenants of peace among themselves, and of justice toward all. This is the road to a universal League of all Nations.
If it be said that to Finland or the Baltic States or Poland or Roumania or Turkey there is danger from their great neighbour, {111} I cannot deny such a possibility; and if any Members of the League are willing to join with such States in protection against such danger, either in advance of its occurrence or when it happens, I would see no objection to it, if such agreements were coupled with all the offers of peaceful settlement that could be written, as well as with offers of membership in the League, either permanent or ad hoc.
To a state which is contemplating the possibility of signing the Protocol of Geneva, it may well be that the provisions of that document regarding sanctions stand out as the most important, the ones having the greatest possibilities as to obligations of future action. This is a very natural point of view, and even a very proper one. And, while I myself am very deeply convinced that, from the point of view of world politics, the most far-reaching and vital provisions of this document are those which refer to arbitration and to the outlawry of war, yet perhaps for that very reason, I am equally convinced that the most serious changes which are necessary in the paper are changes in its provisions for sanctions and for enforcement.
With the principles of compulsory arbitration I am wholly in accord; with the principle that outlawry of war should follow as the necessary and natural consequence of the substitution of a reign of law for a reign of force I quite agree; and that some tribunal should determine, if need arise, that the agreement has been broken and that there is an "outlaw," is a natural consequence of those principles; and that there may be defence against aggression, if it comes, almost no one will deny. But there, I think, we must stop so far as present agreement is concerned. That any State may, if it chooses, go to the defence of another against an adjudged aggressor I would concede; but that all States can be or should be now required to sign an agreement so to go to such defence, I deny. In the present state of world opinion and when its own direct interests are not involved, any free people can well say that it will not or ought not to sign such an undertaking.
So I say that, while arbitration may be agreed to in advance {112} and outlawry of war may be agreed to in advance, sanctions and assistance in defence must be voluntary.
Where does all this leave the problems of disarmament and security?
I answer by saying that the solution of these problems is very difficult, because with it are involved feelings of national fear and haunting doubts of possible national disaster. The feeling of security must be a plant of slow growth, and progress toward disarmament cannot be realized except to the extent that that growth comes. All that can be done now is to make a beginning, and, if too much is attempted, less will be accomplished. The world must rely on the development of the new idea of the reign of law and reach its feeling of security as that reign succeeds and triumphs.
The Protocol of Geneva is one of the most important of modern international documents. This is true whether it comes into force as a binding treaty or whether it does not; and it is true because the Protocol represents a development of international thought since the World War along lines of what may be called international morality, of what may almost be called international religion, which, while not novel in the realm of thought, were wholly novel in the diplomatic field of action.
The belief that international law must be strengthened, the thought that it must lay hold of international questions before the time of war and the idea that the security of a country is to be a security for peace and not simply a security in war, were the principles upon which the Covenant of the League of Nations was based; but in that document they were to some extent formulated only as hopes for the future.
These ideas which the Protocol of Geneva seeks to make complete realities have fundamentally become a part of international life. To my mind, they are certain to be carried out in some document in the near future and one of their incidents will be the realization of schemes for the reduction of armament as an incident of the development of the feeling which exists as to security.
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The Protocol of Geneva will undoubtedly be much changed as a result of the consideration which is now being given to it by the various important governments of the world.[3] In various respects the Protocol goes farther than cautious public sentiment of countries like Great Britain and her Dominions is, or ought to be, willing now to proceed; but it is these very matters which can easily be changed and which will be changed.
The Conference on Disarmament and its result are the cornerstones on which the Protocol of Geneva rests. That Conference must be held and it must have a result; the public sentiment of the world demands it; and the satisfaction of that demand involves the adoption by the Members of the League of the Protocol of Geneva, not the document as it now is, but as it will be.
[1] See Annex G, p. 271.
[2] Supra, p. 84.
[3] Since this monograph was written, I have received the text of the Report of the British Delegates regarding the Protocol of Geneva (Miscellaneous No. 21, 1924, Cmd. 2289). It is reprinted as Annex E, page 217. It is a most valuable and interesting document. I have carefully considered its conclusions, some of which are not the same as my own, and despite my very high regard for its authors, I see no reason to change anything that I have written.
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ANNEXES.
PAGE
A. THE COVENANT OF THE LEAGUE OF NATIONS .......................... 117
B. THE PROTOCOL OF GENEVA ......................................... 132
C. THE REPORT TO THE FIFTH ASSEMBLY ............................... 156
D. RESOLUTIONS .................................................... 210
E. REPORT OF THE BRITISH DELEGATES ................................ 217
F. THE AMERICAN PLAN .............................................. 263
G. THE "AMENDED" COVENANT ......................................... 271
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ANNEX A.
THE COVENANT
OF THE
LEAGUE OF NATIONS.[1]
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.
ARTICLE 1.
The original Members of the League of Nations shall be those of the Signatories which are named in the Annex to this Covenant and also such of those other States named in the Annex as shall accede without reservation to this Covenant. Such accession shall be effected by a Declaration deposited with the Secretariat within two months of the coming into force of the Covenant. Notice thereof shall be sent to all other Members of the League.
Any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval and air forces and armaments.
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Any Member of the League may, after two years' notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal.
ARTICLE 2.
The action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat.
ARTICLE 3.
The Assembly shall consist of Representatives of the Members of the League.
The Assembly shall meet at stated intervals and from time to time as occasion may require at the Seat of the League or at such other place as may be decided upon.
The Assembly may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world.
At meetings of the Assembly each Member of the League shall have one vote, and may have not more than three Representatives.
ARTICLE 4.
The Council shall consist of Representatives of the Principal Allied and Associated Powers, together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the appointment of the Representatives of the four Members of the League first selected by the Assembly, Representatives of Belgium, Brazil, Spain and Greece shall be members of the Council.
With the approval of the majority of the Assembly, the Council may name additional Members of the League whose Representatives shall always be members of the Council; the Council {119} with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council.
The Council shall meet from time to time as occasion may require, and at least once a year, at the Seat of the League, or at such other place as may be decided upon.
The Council may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world.
Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League.
At meetings of the Council, each Member of the League represented on the Council shall have one vote, and may have not more than one Representative.
ARTICLE 5.
Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.
All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting.
The first meeting of the Assembly and the first meeting of the Council shall be summoned by the President of the United States of America.
ARTICLE 6.
The permanent Secretariat shall be established at the Seat of the League. The Secretariat shall comprise a Secretary General and such secretaries and staff as may be required.
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The first Secretary General shall be the person named in the Annex; thereafter the Secretary General shall be appointed by the Council with the approval of the majority of the Assembly.
The secretaries and staff of the Secretariat shall be appointed by the Secretary General with the approval of the Council.
The Secretary General shall act in that capacity at all meetings of the Assembly and of the Council.
The expenses of the League shall be borne by the Members of the League in the proportion decided by the Assembly.
ARTICLE 7.
The Seat of the League is established at Geneva.
The Council may at any time decide that the Seat of the League shall be established elsewhere.
All positions under or in connection with the League, including the Secretariat, shall be open equally to men and women.
Representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities.
The buildings and other property occupied by the League or its officials or by Representatives attending its meetings shall be inviolable.
ARTICLE 8.
The Members of the League recognise that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations.
The Council, taking account of the geographical situation and circumstances of each State, shall formulate plans for such reduction for the consideration and action of the several Governments.
Such plans shall be subject to reconsideration and revision at least every ten years.
After these plans shall have been adopted by the several {121} Governments, the limits of armaments therein fixed shall not be exceeded without the concurrence of the Council.
The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be prevented, due regard being had to the necessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety.
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 war-like purposes.
ARTICLE 9.
A permanent Commission shall be constituted to advise the Council on the execution of the provisions of Articles 1 and 8 and on military, naval and air questions generally.
ARTICLE 10.
The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.
ARTICLE 11.
Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise the Secretary General shall on the request of any Member of the League forthwith summon a meeting of the Council.
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It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.
ARTICLE 12.
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 enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report 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.
For the consideration of any such dispute, the court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them.
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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.
The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court 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.
ARTICLE 15.
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.
If the dispute is not thus settled, the Council either {124} 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 one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report.
If the Council fails to reach a report which is unanimously agreed to by the members thereof, other than the Representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice.
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.
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 dispute, shall have the same force as a report by the Council concurred in by all the members thereof {125} other than the Representatives of one or more of the parties to the dispute.
ARTICLE 16.
Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, 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, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not.
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.
The Members of the League agree, further, that they will mutually support one another in the financial and economic measures 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.
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.
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ARTICLE 17.
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 Articles 12 to 16 inclusive 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 18.
Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.
ARTICLE 19.
The Assembly may from time to time advise the {127} reconsideration by Members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world.
ARTICLE 20.
The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof.
In case any Member of the League shall, before becoming a Member of the League, have undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations.
ARTICLE 21.
Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe doctrine, for securing the maintenance of peace.
ARTICLE 22.
To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.
The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this {128} responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.
The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances.
Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.
Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League.
There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population.
In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.
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The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council.
A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates.
ARTICLE 23.
Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League:
(a) will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose will establish and maintain the necessary international organisations;
(b) undertake to secure just treatment of the native inhabitants of territories under their control;
(c) will entrust the League with the general supervision over the execution of agreements with regard to the traffic in women and children, and the traffic in opium and other dangerous drugs;
(d) will entrust the League with the general supervision of the trade in arms and ammunition with the countries in which the control of this traffic is necessary in the common interest;
(e) will make provision to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League. In this connection, the special necessities of the regions devastated during the war of 1914-1918 shall be borne in mind;
(f) will endeavour to take steps in matters of international concern for the prevention and control of disease.
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ARTICLE 24.
There shall be placed under the direction of the League all international bureaux already established by general treaties if the parties to such treaties consent. All such international bureaux and all commissions for the regulation of matters of international interest hereafter constituted shall be placed under the direction of the League.
In all matters of international interest which are regulated by general convention but which are not placed under the control of international bureaux or commissions, the Secretariat of the League shall, subject to the consent of the Council and if desired by the parties, collect and distribute all relevant information and shall render any other assistance which may be necessary or desirable.
The Council may include as part of the expenses of the Secretariat the expenses of any bureau or commission which is placed under the direction of the League.
ARTICLE 25.
The Members of the League agree to encourage and promote the establishment and co-operation of duly authorised voluntary national Red Cross organisations having as purposes the improvement of health, the prevention of disease and the mitigation of suffering throughout the world.
ARTICLE 26.
Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly.
No such amendments shall bind any Member of the League which signifies its dissent therefrom, but in that case it shall cease to be a Member of the League.
[1] Including Amendments adopted to December, 1924.
The text of the Protocol of Geneva, which follows as Annex B, is printed in French and English on opposite pages.
[Transcriber's note: In the source book, the French and English texts were on facing pages, French on the even/left-hand pages, English on the odd/right-hand pages. The same page order has been preserved in this etext, occasionally resulting split paragraphs.]
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ANNEX B.
PROTOCOLE POUR LE REGLEMENT PACIFIQUE DES DIFFERENDS INTERNATIONAUX.
Anims de la ferme volont d'assurer le maintien de la paix gnrale et la scurit des peuples dont l'existence, l'indpendance ou les territoires pourraient tre menacs;
Reconnaissant la solidarit qui unit les membres de la communaut internationale;
Affirmant que la guerre d'agression constitue une infraction cette solidarit et un crime international;
Dsireux de faciliter la complte application du systme prvu au Pacte de la Socit des Nations pour le rglement pacifique des diffrends entre les Etats et d'assurer la rpression des crimes internationaux; et
Afin de raliser, comme l'envisage l'article 8 du Pacte, la rduction des armements nationaux au minimum compatible avec la scurit nationale et avec l'excution des obligations internationales imposes par une action commune,
Les Soussigns, dment autoriss cet effet, sont convenus des dispositions suivantes:
ARTICLE PREMIER.
Les Etats signataires s'engagent faire tous efforts en leur pouvoir pour l'introduction dans le Pacte d'amendements conformes au sens des dispositions contenues dans les articles suivants.
Ils conviennent que ces dispositions deviendront obligatoires dans leurs rapports respectifs la date de la mise en vigueur du prsent Protocole et que, vis—vis d'eux, l'Assemble et le Conseil de la Socit des Nations seront, ds lors, autoriss exercer tous les droits et devoirs qui leur sont confrs par ce Protocole.
ARTICLE 2.
Les Etats signataires conviennent qu'en aucun cas ils ne
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ANNEX B.
PROTOCOL FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES.
Animated by the firm desire to ensure the maintenance of general peace and the security of nations whose existence, independence or territories may be threatened;
Recognising the solidarity of the members of the international community;
Asserting that a war of aggression constitutes a violation of this solidarity and an international crime;
Desirous of facilitating the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between States and of ensuring the repression of international crimes; and
For the purpose of realising, as contemplated by Article 8 of the Covenant, the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations;
The Undersigned, duly authorised to that effect, agree as follows:
ARTICLE 1.
The signatory States undertake to make every effort in their power to secure the introduction into the Covenant of amendments on the lines of the provisions contained in the following articles.
They agree that, as between themselves, these provisions shall be binding as from the coming into force of the present Protocol and that, so far as they are concerned, the Assembly and the Council of the League of Nations shall thenceforth have power to exercise all the rights and perform all the duties conferred upon them by the Protocol.
ARTICLE 2.
The signatory States agree in no case to resort to war either
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doivent recourir la guerre, ni entre eux ni contre tout Etat qui, le cas chant, accepterait toutes les obligations ci-aprs dfinies, except dans le cas de rsistance des actes d'agression ou quand ils agissent en accord avec le Conseil ou l'Assemble de la Socit des Nations, selon les dispositions du Pacte et du prsent Protocole.
ARTICLE 3.
Les Etats signataires s'engagent reconnatre comme obligatoire, de plein droit et sans convention spciale, la juridiction de la Cour permanente de Justice internationale dans les cas viss au paragraphe 2 de l'Article 36 du Statut de la Cour, mais sans prjudice de la facult pour un Etat quelconque, lorsqu'il adhrera au protocole special ouvert le 16 dcembre 1920, prvu par ledit article, de formuler les rserves compatibles avec ladite clause.
L'adhsion ce protocole spcial ouvert le 16 dcembre 1920 devra tre faite dans le dlai d'un mois qui suivra la mise en vigueur du prsent Protocole.
Les Etats qui adhreront au prsent Protocole aprs sa mise en vigueur devront s'acquitter de l'obligation ci-dessus dans le mois qui suivra leur adhsion.
ARTICLE 4.
En vue de complter les dispositions des alinas 4, 5, 6 et 7 de l'article 15 du Pacte, les Etats signataires conviennent de se conformer la procedure suivante:
1. Si le diffrend soumis au Conseil n'a pu tre rgl par lui ainsi qu'il est prvu au paragraphe 3 dudit article 15, le Conseil engagera les Parties soumettre le diffrend un rglement judiciaire ou arbitral.
2. a) Si les Parties s'y refusent, il est procd, la demande d'au moins l'une des Parties, la constitution d'un Comit d'arbitres. Le Comit sera constitu, autant que possible, par l'accord des Parties.
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with one another or against a State which, if the occasion arises accepts all the obligations hereinafter set out, except in case of resistance to acts of aggression or when acting in agreement with the Council or the Assembly of the League of Nations in accordance with the provisions of the Covenant and of the present Protocol.
ARTICLE 3.
The signatory States undertake to recognise 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 State, 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.
Accession to this special protocol, opened for signature on December 16th, 1920, must be given within the month following the coming into force of the present Protocol.
States which accede to the present Protocol, after its coming into force, must carry out the above obligation, within the month following their accession.
ARTICLE 4.
With a view to render more complete the provisions of paragraphs 4, 5, 6, and 7 of Article 15 of the Covenant, the signatory States agree to comply with the following procedure:
1. If the dispute submitted to the Council is not settled by it as provided in paragraph 3 of the said Article 15, the Council shall endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration.
2. (a) 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.
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b) Si, dans le dlai que le Conseil aura fix, elles ne se sont pas entendues en tout ou en partie sur le nombre, le nom et les pouvoirs des arbitres, ainsi que sur la procedure, le Conseil rglera les points en suspens. Il choisira d'urgence—en consultant les Parties—les arbitres et leur prsident, parmi les personnes qui, par leur nationalit, leur caractre et leur exprience, lui paratront donner les plus hautes garanties de comptence et d'impartialit.
c) Aprs que les conclusions des Parties auront t formules, le Comit d'arbitres, la demande de toute Partie, sollicitera, par l'entremise du Conseil, sur les points de droit contests, l'avis consultatif de la Cour permanente de Justice Internationale qui, dans ce cas, se runira d'urgence.
3. Si aucune des Parties ne demande l'arbitrage, le Conseil reprendra l'examen du diffrend. Au cas o le Conseil tablit un rapport vot l'unanimit de ses membres autres que les reprsentants de toute Partie au diffrend, les Etats signataires conviennent de se conformer aux solutions recommandes par lui.
4. Au cas o le Conseil ne peut tablir un rapport accept par tous ses membres autres que les reprsentants de toute Partie au diffrend, il soumettra le diffrend a l'arbitrage. Il rglera lui-mme la composition, les pouvoirs et la procedure du Comit d'arbitres et aura gard, dans le choix des arbitres, aux garanties de comptence et d'impartialit vises au No. 2b ci-dessus.
5. En aucun cas ne pourront tre remises en question les solutions ayant dj fait l'objet d'une recommandation unanime du Conseil accepte par l'une des Parties intersses.
6. Les Etats signataires s'engagent xecuter de bonne foi les sentences judiciaires ou arbitrales et se conformer, comme il a t dit a l'alina 3 ci-dessus, aux solutions recommandes par le Conseil. Dans le cas o un Etat manquerait ces engagements, le Conseil exercera toute son influence pour en assurer le respect. S'il ne peut y russir, il proposera les mesures qui doivent en assurer
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(b) 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. It shall with the utmost possible despatch 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 it to furnish the highest guarantees of competence and impartiality.
(c) 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 despatch.
3. If none of the parties asks for arbitration, the Council shall again take the dispute under consideration. If the Council reaches a report which is unanimously agreed to by the members thereof other than the representatives of any of the parties to the dispute, the signatory States agree to comply with the recommendations therein.
4. If the Council fails to reach a report which is concurred in by all its members, other than the representatives of any of the parties to the dispute, it shall submit the dispute to arbitration. It 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 in paragraph 2 (b) above. |
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