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5. In no case may a solution, upon which there has already been a unanimous recommendation of the Council accepted by one of the parties concerned, be again called in question.
6. The signatory States undertake that they will carry out in full good faith any judicial sentence or arbitral award that may be rendered and that they will comply, as provided in paragraph 3 above, with the solutions recommended by the Council. In the event of a State failing to carry out the above undertakings, the Council shall exert all its influence to secure compliance
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l'effet, ainsi qu'il est dit la fin de l'article 13 du Pacte. Dans le cas o un Etat, manquant ces engagements, recourrait la guerre, les sanctions prvues l'article 16 du Pacte, interpretes de la manire indique au prsent Protocole, lui deviendraient immdiatement applicables.
7. Les dispositions du prsent article ne s'appliquent pas au rglement des diffrends qui pourraient s'lever la suite des mesures de guerre prises par un ou plusieurs Etats signataires en accord avec le Conseil ou l'Assemble.
ARTICLE 5.
La disposition de l'alina 8 de l'article 15 du Pacte demeure applicable devant le Conseil.
Si, pendant le cours d'une des procdures d'arbitrage prvues l'article 4 ci-dessus, l'une des Parties prtend que le diffrend, ou une partie du diffrend, porte sur une question que le droit international laisse la comptence exclusive de cette Partie, les arbitres consulteront sur ce point la Cour permanente de Justice internationale par l'entremise du Conseil. L'avis de la Cour liera les arbitres qui se borneront, si cet avis est affirmatif, le constater dans leur sentence.
Si la question est reconnue par la Cour permanente ou par le Conseil comme tant de la comptence exclusive d'un Etat, la dcision intervenue n'empchera pas que la situation soit examine par le Conseil ou par l'Assemble, conformment l'article 11 du Pacte.
ARTICLE 6.
Si, conformment l'alina 9 de l'article 15 du Pacte, le diffrend est port devant l'Assemble, celle-ci aura, pour le rglement du diffrend, tous les pouvoirs dvolus au Conseil en ce qui concerne l'essai de conciliation des Parties, tel qu'il est prvu aux alinas 1, 2 ct 3 de l'article 15 du Pacte et au No. 1 de l'article 4 ci-dessus.
A dfaut de reglement amiable obtnu par l'Assemble:
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therewith. If it fails therein, it shall propose what steps should be taken to give effect thereto, in accordance with the provision contained at the end of Article 13 of the Covenant. Should a State in disregard of the above undertakings resort to war, the sanctions provided for by Article 16 of the Covenant, interpreted in the manner indicated in the present Protocol, shall immediately become applicable to it.
7. The provisions of the present article do not apply to the settlement of disputes which arise as the result of measures of war taken by one or more signatory States in agreement with the Council or the Assembly.
ARTICLE 5.
The provisions of paragraph 8 of Article 15 of the Covenant shall continue to apply in proceedings before the Council.
If in the course of an arbitration, such as is contemplated in Article 4 above, one of the parties claims that the dispute, or part thereof, arises out of a matter which by international law is solely within the domestic jurisdiction of that party, the arbitrators shall on this point take the advice of the Permanent Court of International Justice through the medium of the Council. The opinion of the Court shall be binding upon the arbitrators, who, if the opinion is affirmative, shall confine themselves to so declaring in their award.
If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the Assembly under Article 11 of the Covenant.
ARTICLE 6.
If in accordance with paragraph 9 of Article 15 of the Covenant a dispute is referred to the Assembly, that body shall have for the settlement of the dispute all the powers conferred upon the Council as to endeavouring to reconcile the parties in the manner laid down in paragraphs 1, 2 and 3 of Article 15 of the Covenant and in paragraph 1 of Article 4 above.
Should the Assembly fail to achieve an amicable settlement:
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Si l'une des Parties demande l'arbitrage, il est procd par le Conseil la constitution du Comit d'arbitres, dans les conditions prevues au No. 2 de l'article 4 ci-dessus, lettres a, b et c;
Si aucune des Parties ne demande l'arbitrage, l'Assemble reprend, avec les mmes pouvoirs que le Conseil, l'examen du diffrend. Les solutions recommandes par le Rapport de l'Assemble, dans les conditions d'approbation prvues la fin de l'alina 10 de l'article 15 du Pacte, ont la mme valeur et produiront les mmes effets, en tout ce qui concerne le prsent Protocole, que celles recommandes par le Rapport du Conseil dans les conditions prvues au No. 3 de l'article 4 ci-dessus.
Si la majorit ncessaire ne peut tre obtenue, le diffrend sera soumis a l'arbitrage et le Conseil rglera lui-mme la composition, les pouvoirs et la procdure du Comit d'arbitres, comme il est dit au No. 4 dudit article 4.
ARTICLE 7.
Dans le cas d'un diffrend s'elevant entre deux ou plusieurs Etats signataires, ceux-ci conviennent que, soit avant que le differnd ait t soumis une procdure de rglement pacifique, soit au cours d'une telle procdure, ils ne procderont aucune augmentation d'armements ou d'effectifs qui pourrait modifier la situation fixe par la Confrence pour la rduction des armements prvue l'article 17 du prsent Protocole; ils ne procederont non plus aucune mesure de mobilisation militaire, navale, aerienne, industrielle ou conomique, ni en gneral aucun acte de nature aggraver ou tendre le diffrend.
Conformment aux dispositions de l'article 11 du Pacte, il est du devoir du Conseil d'examiner toute plainte en violation des engagements ci-dessus, qui pourrait lui tre adresse par un ou plusieurs des Etats parties au diffrend. Si le Conseil considre que la plainte est recevable, il doit, s'il l'estime convenable, organiser des enqutes et des investigations dans un ou plusieurs des pays intresss. Ces enqutes et ces investigations doivent tre faites dans les dlais les plus brefs, et les Etats signataires s'engagent donner toutes facilits pour leur excution.
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If one of the parties asks for arbitration, the Council shall proceed to constitute the Committee of Arbitrators in the manner provided in sub-paragraphs (a), (b) and (c) of paragraph 2 of Article 4 above.
If no party asks for arbitration, the Assembly shall again take the dispute under consideration and shall have in this connection the same powers as the Council. Recommendations embodied in a report of the Assembly, provided that it secures the measure of support stipulated at the end of paragraph 10 of Article 15 of the Covenant, shall have the same value and effect, as regards all matters dealt with in the present Protocol, as recommendations embodied in a report of the Council adopted as provided in paragraph 3 of Article 4 above.
If the necessary majority cannot be obtained, the dispute shall be submitted to arbitration and the Council shall determine the composition, the powers and the procedure of the Committee of Arbitrators as laid down in paragraph 4 of Article 4.
ARTICLE 7.
In the event of a dispute arising between two or more signatory States, these States agree that they will not, either before the dispute is submitted to proceedings for pacific settlement or during such proceedings, make any increase of their armaments or effectives which might modify the position established by the Conference for the Reduction of Armaments provided for by Article 17 of the present Protocol, nor will they take any measure of military, naval, air, industrial or economic mobilisation, nor, in general, any action of a nature likely to extend the dispute or render it more acute.
It shall be the duty of the Council, in accordance with the provisions of Article 11 of the Covenant, to take under consideration any complaint as to infraction of the above undertakings which is made to it by one or more of the States parties to the dispute. Should the Council be of opinion that the complaint requires investigation, it shall, if it deems it expedient, arrange for enquiries and investigations in one or more of the countries concerned. Such enquiries and investigations shall be carried
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Les mesures ainsi prises par li Conseil sont destines uniquement faciliter li rglement pacifique des diffrends et ne doivent prjuger en rien du rglement lui-mme.
Si, la suite de ces enqutes et investigations, une infraction quelconque aux dispositions du premier alina du prsent article est tablie, il est du devoir du Conseil de sommer l'Etat ou les Etats coupables de l'infraction de la faire disparatre. Si l'Etat ou les Etats en question ne se conforment pas cette sommation, le Conseil dclare lesdits Etats coupables d'une violation du Pacte ou du prsent Protocole et doit dcider les mesures prendre en vue de faire cesser au plus tt une situation de nature menacer la paix du monde.
Pour l'application du prsent article, le Conseil prendra sa dcision la majorite des deux tiers.
ARTICLE 8.
Les Etats signataires s'engagent s'abstenir de toute action qui pourrait constituer une menace d'agression contre un autre Etat.
Dans li cas o un des Etats signataires estime qu'un autre Etat procd des prparatifs de guerre, il a le droit d'en saisir le Conseil.
Celui-ci, aprs avoir vrifi les faits, opre comme il est dit l'article 7, alinas 2, 4 et 5.
ARTICLE 9.
L'existence de zones demilitarises tant de nature prvenir les agressions et en faciliter la dtermination sans quivoque conformment l'article 10 ci-dessous, l'tablissement de pareilles zones est recommand entre les Etats qui y seraient galement consentants, comme un moyen d'viter une violation du prsent Protocole.
Les zones dmilitarises dj existantes en vertu de certains Traits ou Conventions, ou qui seraient tablies l'avenir entre Etats galement consentants, pourront faire l'objet d'un contrle temporaire ou permanent, organis par le Conseil, la demande et aux frais d'un ou de plusieurs Etats limitrophes.
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out with the utmost possible despatch, and the signatory States undertake to afford every facility for carrying them out.
The sole object of measures taken by the Council as above provided is to facilitate the pacific settlement of disputes and they shall in no way prejudge the actual settlement.
If the result of such enquiries and investigations is to establish an infraction of the provisions of the first paragraph of the present Article, it shall be the duty of the Council to summon the State or States guilty of the infraction to put an end thereto. Should the State or States in question fail to comply with such summons, the Council shall declare them to be guilty of a violation of the Covenant or of the present Protocol, and shall decide upon the measures to be taken with a view to end as soon as possible a situation of a nature to threaten the peace of the world.
For the purposes of the present Article decisions of the Council may be taken by a two-thirds majority.
ARTICLE 8.
The signatory States undertake to abstain from any act which might constitute a threat of aggression against another State.
If one of the signatory States is of opinion that another State is making preparations for war, it shall have the right to bring the matter to the notice of the Council.
The Council, if it ascertains that the facts are as alleged, shall proceed as provided in paragraphs 2, 4, and 5 of Article 7.
ARTICLE 9.
The existence of demilitarised zones being calculated to prevent aggression and to facilitate a definite finding of the nature provided for in Article 10 below, the establishment of such zones between States mutually consenting thereto is recommended as a means of avoiding violations of the present Protocol.
The demilitarised zones already existing under the terms of certain treaties or conventions, or which may be established in future between States mutually consenting thereto, may at the request and at the expense of one or more of the conterminous States, be placed under a temporary or permanent system of supervision to be organized by the Council.
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ARTICLE 10.
Est agresseur tout Etat qui recourt la guerre en violation des engagements prvus au Pacte ou au prsent Protocole. Est assimile au recours la guerre la violation du statut d'une zone dmilitarise.
Dans le cas d'hostilits engages, est prsum agresseur, sauf dcision contraire du Conseil prise l'unanimit:
1. Tout Etat qui aura refus de soumettre le diffrend la procdure pour rglement pacifique prvue aux articles 13 et 15 du Pacte, complts par le prsent Protocole—ou qui aura refus de se conformer, soit une dcision judiciaire ou arbitrale, soit une recommandation unanime du Conseil—ou qui aura pass outre un rapport unanime du Conseil, une dcision judiciaire ou arbitrale reconnaissant que le diffrend qui s'est lev entre lui et l'autre Etat belligrant porte sur une question que le Droit international laisse la comptence exclusive de cet Etat; toutefois, dans ce dernier cas, l'Etat ne sera prsum agresseur que s'il n'a pas soumis auparavant la question au Conseil ou l'Assemble, conformment l'article 11 du Pacte.
2. Tout Etat qui aura viol une des mesures provisoires prescrites par le Conseil pendant la priode de procdure, vises l'article 7 du prsent Protocole.
Hors les hypothses vises aux numros 1 et 2 du prsent article, si le Conseil n'a pu dterminer dans le plus bref dlai l'agresseur, il aura l'obligation de prescrire aux belligrants un armistice dont il fixera les conditions la majorit des deux tiers et dont il surveillera l'observation.
Tout belligrant ayant refus l'armistice ou en ayant viol les conditions, sera rput agresseur.
Le Conseil enjoindra aux Etats signataires d'appliquer sans retard contre l'agresseur les sanctions vises l'article 11 du prsent Protocole, et tout Etat signataire, ainsi requis, sera ds lors fond exercer les droits d'un belligrant.
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ARTICLE 10.
Every State which resorts to war in violation of the undertakings contained in the Covenant or in the present Protocol is an aggressor. Violation of the rules laid down for a demilitarised zone shall be held equivalent to resort to war.
In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare:
1. If it has refused to submit the dispute to the procedure of pacific settlement provided by Articles 13 and 15 of the Covenant as amplified by the present Protocol, or to comply with a judicial sentence or arbitral award or with a unanimous recommendation of the Council, or has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award recognising that the dispute between it and the other belligerent State arises out of a matter which by international law is solely within the domestic jurisdiction of the latter State; nevertheless, in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly, in accordance with Article 11 of the Covenant.
2. If it has violated provisional measures enjoined by the Council for the period while the proceedings are in progress as contemplated by Article 7 of the present Protocol.
Apart from the cases dealt with in paragraphs 1 and 2 of the present Article, if the Council does not at once succeed in determining the aggressor, it shall be bound to enjoin upon the belligerents an armistice, and shall fix the terms, acting, if need be, by a two-thirds majority and shall supervise its execution.
Any belligerent which has refused to accept the armistice or has violated its terms shall be deemed an aggressor.
The Council shall call upon the signatory States to apply forthwith against the aggressor the sanctions provided by Article 11 of the present Protocol, and any signatory State thus called upon shall thereupon be entitled to exercise the rights of a belligerent.
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ARTICLE 11.
Ds que le Conseil a fait aux Etats signataires l'injonction prvue au dernier alina de l'article 10 du prsent Protocole, les obligations desdits Etats en ce qui concerne les sanctions de toute nature vises aux alinas 1 et 2 de l'article 16 du Pacte, deviennent immdiatement oprantes afin que ces sanctions puissent porter leurs effets contre l'agresseur sans aucun retard.
Ces obligations doivent tre interprtes en ce sens que chacun des Etats signataires est tenu de collaborer loyalement et effectivement pour faire respecter le Pacte de la Socit des Nations et pour s'opposer tout acte d'agression dans la msure que lui permettent sa situation gographique et les conditions spciales de ses armements.
Conformment l'alina 3 de l'article 16 du Pacte, les Etats signataires prennent l'engagement, individuel et collectif, de venir l'aide de l'Etat attaqu ou menac, et de se prter un mutuel appui, grce des facilits et des changes rciproques en ce qui concerne le ravitaillement en matires premires et denres de toute nature, les ouvertures de crdit, les transports et le transit et, cet effet, de prendre toutes mesures en leur pouvoir pour maintenir la scurit des communications terrestres et maritimes de l'Etat attaqu ou menac.
Si les deux Parties au diffrend sont agresseurs au sens de l'article 10, les sanctions conomiques et financires s'appliquent a l'une et l'autre.
ARTICLE 12.
En raison de la complexit des conditions dans lesquelles le Conseil pourrait tre appel remplir les fonctions vises l'article 11 ci-dessus concernant les sanctions conomiques et financires et pour prciser les garanties qui sont offertes par le prsent Protocole aux Etats signataires, le Conseil invitera immdiatement les organisations conomiques et financires de la Socit des Nations procder une tude et
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ARTICLE 11.
As soon as the Council has called upon the signatory States to apply sanctions, as provided in the last paragraph of Article 10 of the present Protocol, the obligations of the said States, in regard to the sanctions of all kinds mentioned in paragraphs 1 and 2 of Article 16 of the Covenant, will immediately become operative in order that such sanctions may forthwith be employed against the aggressor.
Those obligations shall be interpreted as obliging each of the signatory States to co-operate loyally and effectively in support of the Covenant of the League of Nations, and in resistance to any act of aggression, in the degree which its geographical position and its particular situation as regards armaments allow.
In accordance with paragraph 3 of Article 16 of the Covenant the signatory States give a joint and several undertaking to come to the assistance of the State attacked or threatened, and to give each other mutual support by means of facilities and reciprocal exchanges as regards the provision of raw materials and supplies of every kind, openings of credits, transport and transit, and for this purpose to take all measures in their power to preserve the safety of communications by land and by sea of the attacked or threatened State.
If both parties to the dispute are aggressors within the meaning of Article 10, the economic and financial sanctions shall be applied to both of them.
ARTICLE 12.
In view of the complexity of the conditions in which the Council may be called upon to exercise the functions mentioned in Article 11 of the present Protocol concerning economic and financial sanctions, and in order to determine more exactly the guarantees afforded by the present Protocol to the signatory States, the Council shall forthwith invite the economic and financial organisations of the League of Nations to consider and report
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soumettre un rapport sur la nature des dispositions prendre pour mettre en vigueur les sanctions et mesures de coopration conomique et financire, vises l'article 16 du Pacte et l'article 11 du present Protocole.
En possession de ces informations, le Conseil tablira par ses organismes comptents:
1. les plans d'action destins faire jouer les sanctions economiques et financires contre un Etat agresseur;
2. les plans de coopration conomique et financire entre un Etat attaqu et les divers Etats lui portant assistance,
et il communiquera ces plans aux Membres de la Socit et aux autres Etats signataires.
ARTICLE 13.
Eu gard aux sanctions militaires, navales et ariennes dont l'application ventuelle est prvue l'article 16 du Pacte et l'article 11 du prsent Protocole, le Conseil aura qualit pour recevoir les engagements d'Etats dterminant par avance les forces militaires, navales et ariennes que ces Etats pourraient faire intervenir immdiatement afin d'assurer l'excution des obligations drivant ce sujet du Pacte et du prsent Protocole.
Ds que le Conseil a fait aux Etats signataires l'injonction prvue au dernier alina de l'article 10 ci-dessus, ces Etats peuvent en outre faire entrer en ligne, suivant les accords antrieurement faits, leurs forces militaires, navales et ariennes au secours d'un Etat particulier, victime de l'agression.
Les accords viss au prcdent alina sont enregistrs et publis par le Secrtariat de la Socit des Nations; ils restent ouverts tout Etat Membre de la Socit, qui voudrait y accder.
ARTICLE 14.
Le Conseil a seul qualit pour dclarer qui'l y a lieu de faire cesser l'application des sanctions et de rtablir les conditions normales.
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as to the nature of the steps to be taken to give effect to the financial and economic sanctions and measures of co-operation contemplated in Article 16 of the Covenant and in Article 11 of this Protocol.
When in possession of this information, the Council shall draw up through its competent organs:
1. Plans of action for the application of the economic and financial sanctions against an aggressor State;
2. Plans of economic and financial co-operation between a State attacked and the different States assisting it;
and shall communicate these plans to the Members of the League and to the other signatory States.
ARTICLE 13.
In view of the contingent military, naval and air sanctions provided for by Article 16 of the Covenant and by Article 11 of the present Protocol, the Council shall be entitled to receive undertakings from States determining in advance the military, naval and air forces which they would be able to bring into action immediately to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol.
Furthermore, as soon as the Council has called upon the signatory States to apply sanctions, as provided in the last paragraph of Article 10 above, the said States may, in accordance with any agreements which they may previously have concluded, bring to the assistance of a particular State, which is the victim of aggression, their military, naval and air forces.
The agreements mentioned in the preceding paragraph shall be registered and published by the Secretariat of the League of Nations. They shall remain open to all States Members of the League which may desire to accede thereto.
ARTICLE 14.
The Council shall alone be competent to declare that the application of sanctions shall cease and normal conditions be re-established.
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ARTICLE 15.
Pour rpondre l'esprit du prsent Protocole, les Etats signataires conviennent que la totalit des frais de toute opration d'ordre militaire, naval ou arien, entreprise pour la rprssion d'une agression, conformment aux termes de ce Protocole, ainsi que la rparation de tous dommages subis par les personnes civiles ou militaires, et de tous dommages matriels occasionns par les oprations de part et d'autre, seront supports par l'Etat agresseur jusqu' l'extrme limite de sa capacit.
Toutefois, vu l'article 10 du Pacte, il ne pourra, comme suite l'application des sanctions vises au prsent Protocole, tre port atteinte en aucun cas l'intgrit territoriale ou l'indpendance politique de l'Etat agresseur.
ARTICLE 16.
Les Etats signataires conviennent qu'en cas de diffrend entre un ou plusieurs parmi eux et un ou plusieurs Etats non signataires du prsent Protocole rtangers la Socit des Nations, ces Etats trangers seront invits, aux conditions prvues l'article 17 du Pacte, se soumettre aux obligations acceptes par les signataires du prsent Protocole aux fins de rglement pacifique.
Si l'Etat invit, refusant d'accepter les dites conditions et obligations, recourt la guerre centre un Etat signataire, les dispositions de l'article 16 du Pacte, telles qu'elles sont prcises par le prsent Protocole, lui sont applicables.
ARTICLE 17.
Les Etats signataires s'engagent prendre part une Confrence internationale pour la rduction des armements qui devra tre convoque par le Conseil et qui se runira Geneve le lundi 15 juin 1925. Tous autres Etats, Membres ou non de la Socit, seront invits cette Confrence.
En vue de la convocation de la Confrence, le Conseil
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ARTICLE 15.
In conformity with the spirit of the present Protocol the signatory States agree that the whole cost of any military, naval or air operations undertaken for the repression of an aggression under the terms of the Protocol, and reparation for all losses suffered by individuals, whether civilians or combatants, and for all material damage caused by the operations of both sides, shall be borne by the aggressor State up to the extreme limit of its capacity.
Nevertheless, in view of Article 10 of the Covenant, neither the territorial integrity nor the political independence of the aggressor State shall in any case be affected as the result of the application of the sanctions mentioned in the present Protocol.
ARTICLE 16.
The signatory States agree that in the event of a dispute between one or more of them and one or more States which have not signed the present Protocol and are not Members of the League of Nations, such non-Member States shall be invited, on the conditions contemplated in Article 17 of the Covenant, to submit, for the purpose of a pacific settlement, to the obligations accepted by the States signatories of the present Protocol.
If the State so invited, having refused to accept the said conditions and obligations, resorts to war against a signatory State, the provisions of Article 16 of the Covenant, as defined by the present Protocol, shall be applicable against it.
ARTICLE 17.
The signatory States undertake to participate in an International Conference for the Reduction of Armaments which shall be convened by the Council and shall meet at Geneva on Monday, June 15th, 1925. All other States, whether Members of the League or not, shall be invited to this Conference.
In preparation for the convening of the Conference, the
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prparera, en tenant compte des engagements prvus aux articles 11 et 13 du prsent Protocole, un programme gnral pour la reduction et la limitation des armements qui sera mis la disposition de cette Confrence et communiqu aux gouvernements le plus tt possible, et au plus tard trois mois avant la runion.
Si au moins la majorit des Membres reprsents en permanence au Conseil et dix autres Membres de la Socit n'ont pas dpos leur ratification pour le 1er mai 1925, le Scretaire gnral de la Socit devra prendre immdiatement l'avis du Conseil pour savoir s'il doit annuler les invitations ou simplement ajourner la Confrence une date ultrieure, qui sera fixe par le Conseil pour permettre la runion du nombre necessaire de ratifications.
ARTICLE 18.
Toutes les fois que, dans l'article 10 ou dans toutes autres dispositions du prsent Protocole, il est fait mention d'une dcision du Conseil, elle s'entend dans le sens de l'article 15 du Pacte, savoir que le vote des reprsentants des Parties au diffrend ne compte pas dans le calcul de l'unanimit ou de la majorit requise.
ARTICLE 19.
A dfaut de stipulations expresses, le prsent Protocole n'affecte pas les droits et les obligations des Membres de la Socit des Nations, tels qu'ils rsultent du Pacte.
ARTICLE 20.
Tout diffrend relatif l'interpretation du prsent Protocole sera soumis la Cour permanente de Justice Internationale.
ARTICLE 2l.
Le prsent Protocole, dont les textes franais et anglais feront foi, sera ratifi.
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Council shall draw up with due regard to the undertakings contained in Articles 11 and 13 of the present Protocol a general programme for the reduction and limitation of armaments, which shall be laid before the Conference and which shall be communicated to the Governments at the earliest possible date, and at the latest three months before the Conference meets.
If by May 1st, 1925, ratifications have not been deposited by at least a majority of the permanent Members of the Council and ten other Members of the League, the Secretary-General of the League shall immediately consult the Council as to whether he shall cancel the invitations or merely adjourn the Conference to a subsequent date to be fixed by the Council so as to permit the necessary number of ratifications to be obtained.
ARTICLE 18.
Wherever mention is made in Article 10, or in any other provision of the present Protocol, of a decision of the Council, this shall be understood in the sense of Article 15 of the Covenant, namely that the votes of the representatives of the parties to the dispute shall not be counted when reckoning unanimity or the necessary majority.
ARTICLE 19.
Except as expressly provided by its terms, the present Protocol shall not affect in any way the rights and obligations of Members of the League as determined by the Covenant.
ARTICLE 20.
Any dispute as to the interpretation of the present Protocol shall be submitted to the Permanent Court of International Justice.
ARTICLE 21.
The present Protocol, of which the French and English texts are both authentic, shall be ratified.
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Le dpt des ratifications sera effectu au Secrtariat de la Socit des Nations le plus tt qu'il sera possible.
Les Etats dont le gouvernement a son sige hors d'Europe auront la facult de se borner faire connatre au Secrtariat de la Societe des Nations que leur ratification a t donne et, dans ce cas, ils devront en transmettre l'instrument aussitt que faire se pourra.
Ds que la majorit des Membres reprsents en permanence au Conseil et dix autres Membres de la Socit auront dpos ou effectu leur ratification, un procs-verbal sera dress par le Secrtariat pour le constater.
La mise en vigueur du Protocole aura lieu aprs que ce procs-verbal aura t dress et ds que le plan de rduction des armements aura t adopt par la Confrence prevue l'article 17.
Si, dans un dlai, fixer par ladite Confrence aprs l'adoption du plan de rduction des armements, ce plan n'a pas t excut, il appartiendra au Conseil de le constater; par l'effet de cette constatation le prsent Protocole deviendra caduc.
Les conditions en vertu desquelles le Conseil pourra constater que le plan tabli par la Confrence internationale pour la rduction des armements n'a pas t excut et que, par consquent, le prsent Protocole est devenu caduc, seront dfinies par la Confrence elle-mme.
Tout Etat signataire qui ne se conformerait pas, aprs l'expiration du dlai fix par la Confrence, au plan adopt par elle, ne pourra bnficier des dispositions du prsent Protocole.
En foi de quoi les Soussigns, dment autoriss cet effet, ont sign le prsent Protocole.
Fait Genve, le deux octobre, mil neuf cent vingt-quatre, en un seul exemplaire qui restera dpos dans les archives du Secretariat de la Socit des Nations et qui sera enregistr par lui la date de son entre en vigueur.
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The deposit of ratifications shall be made at the Secretariat of the League of Nations as soon as possible.
States of which the seat of government is outside Europe will be entitled merely to inform the Secretariat of the League of Nations that their ratification has been given; in that case, they must transmit the instrument of ratification as soon as possible.
So soon as the majority of the permanent Members of the Council and ten other Members of the League have deposited or have effected their ratifications, a procs-verbal to that effect shall be drawn up by the Secretariat.
After the said procs-verbal has been drawn up, the Protocol shall come into force as soon as the plan for the reduction of armaments has been adopted by the Conference provided for in Article 17.
If within such period after the adoption of the plan for the reduction of armaments as shall be fixed by the said Conference, the plan has not been carried out, the Council shall make a declaration to that effect; this declaration shall render the present Protocol null and void.
The grounds on which the Council may declare that the plan drawn up by the International Conference for the Reduction of Armaments has not been carried out, and that in consequence the present Protocol has been rendered null and void, shall be laid down by the Conference itself.
A signatory State which, after the expiration of the period fixed by the Conference, fails to comply with the plan adopted by the Conference, shall not be admitted to benefit by the provisions of the present Protocol.
In faith whereof the Undersigned, duly authorised for this purpose, have signed the present Protocol.
DONE at Geneva, on the second day of October, nineteen hundred and twenty-four, in a single copy, which will be kept in the archives of the Secretariat of the League and registered by it on the date of its coming into force.
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ANNEX C.
GENERAL REPORT SUBMITTED TO THE FIFTH ASSEMBLY ON BEHALF OF THE FIRST AND THIRD COMMITTEES BY M. POLITIS (GREECE) AND M. BENES (CZECHOSLOVAKIA).
I
INTRODUCTION.
After being examined for several years by the Third Committee, the problem of the reduction of armaments has this year suddenly assumed a different, a wider and even an unexpected form.
Last year a draft Treaty of Mutual Assistance was prepared, which the Assembly sent to the Members of the League for their consideration. The replies from the Governments were to be examined by the Fifth Assembly.
At the very beginning of its work, however, after a memorable debate, the Assembly indicated to the Third Committee a new path. On September 6th, 1924, on the proposal of the Prime Ministers of France and Great Britain, M. Edouard Herriot and Mr. Ramsay MacDonald, the Assembly adopted the following resolution:
"The Assembly,
"Noting the declarations of the Governments represented, observes with satisfaction that they contain the basis of an understanding tending to establish a secure peace,
"Decides as follows:
"With a view to reconciling in the new proposals the divergences between certain points of view which have been expressed and, when agreement has been reached, to enable an international conference upon armaments to be summoned by the League of Nations at the earliest possible moment:
"(1) The Third Committee is requested to consider the {157} material dealing with security and the reduction of armaments, particularly the observations of the Governments on the draft Treaty of Mutual Assistance, prepared in pursuance of Resolution XIV of the Third Assembly and other plans prepared and presented to the Secretary-General since the publication of the draft Treaty, and to examine the obligations contained in the Covenant of the League in relation to the guarantees of security which a resort to arbitration and a reduction of armaments may require:
"(2) The First Committee is requested:
"(a) To consider, in view of possible amendments, the articles in the Covenant relating to the settlement of disputes;
"(b) To examine within what limits the terms of Article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice might be rendered more precise and thereby facilitate the more general acceptance of the clause;
and thus strengthen the solidarity and the security of the nations of the world by settling by pacific means all disputes which may arise between States."
This resolution had two merits, first, that of briefly summarising all the investigations made in the last four years by the different organisations of the League in their efforts to establish peace and bring about the reduction of armaments, and, secondly, that of indicating the programme of work of the Committees in the hope that, with the aid of past experience, they would at last attain the end in view.
The Assembly had assigned to each Committee a distinct and separate task; to the First Committee, the examination of the pacific settlement of disputes by methods capable of being applied in every case; to the Third Committee, the question of the security of nations considered as a necessary preliminary condition for the reduction of their armaments.
Each Committee, after a general discussion which served to {158} detach the essential elements from the rest of the problem, referred the examination of its programme to a Sub-Committee, which devoted a large number of meetings to this purpose.
The proposals of the Sub-Committees then led to very full debates by the Committees, which terminated in the texts analysed below.
As, however, the questions submitted respectively to the two Committees form part of an indivisible whole, contact and collaboration had to be established between the Committees by means of a Mixed Committee of nine members and finally by a joint Drafting Committee of four members.
For the same reason, the work of the Committees has resulted in a single draft protocol accompanied by two draft resolutions for which the Committees are jointly responsible.
Upon these various texts, separate reports were submitted, which, being approved by the Committees respectively responsible for them, may be considered as an official commentary by the Committees.
These separate reports have here been combined in order to present as a whole the work accomplished by the two Committees and to facilitate explanation.
Before entering upon an analysis of the proposed texts, it is expedient to recall, in a brief historical summary, the efforts of the last four years, of which the texts are the logical conclusion.
HISTORICAL STATEMENT.
The problem of the reduction of armaments is presented in Article 8 of the Covenant in terms which reveal at the outset the complexity of the question and which explain the tentative manner in which the subject has been treated by the League of Nations in the last few years.
"The Members of the League recognise that the maintenance of peace requires the reduction of national armaments to {159} the lowest point consistent with national safety and the enforcement by common action of international obligations."
Here we see clearly expressed the need of reducing the burden which armaments imposed upon the nations immediately after the war and of putting a stop to the competition in armaments which was, in itself, a threat to the peace of the world. But, at the same time, there is recognised the duty of safeguarding the national security of the Members of the League and of safeguarding it, not only by the maintenance of a necessary minimum of troops, but also by the co-operation of all the nations, by a vast organisation for peace.
Such is the meaning of the Covenant, which, while providing for reduction of armaments properly so called, recognises at the same time the need of common action, by all the Members of the League, with a view to compelling a possible disturber of the peace to respect his international obligations.
Thus, in this first paragraph of Article 8, which is so short but so pregnant, mention is made of all the problems which have engaged the attention of our predecessors and ourselves and which the present Assembly has specially instructed us to solve, the problems of collective security and the reduction of armaments.
Taking up Article 8 of the Covenant, the First Assembly had already outlined a programme. At its head it placed a pronouncement of the Supreme Council:
"In order to diminish the economic difficulties of Europe, armies should everywhere be reduced to a peace footing. Armaments should be limited to the lowest possible figure compatible with national security."
The Assembly also called attention to a resolution of the International Financial Conference of Brussels held a short time before:
"Recommending to the Council of the League of Nations the {160} desirability of conferring at once with the several Governments concerned with a view to securing a general reduction of the crushing burdens which, on their existing scale, armaments still impose on the impoverished peoples of the world, sapping their resources and imperilling their recovery from the ravages of war."
It also requested its two Advisory Commissions to set to work at once to collect the necessary information regarding the problem referred to in Article 8 of the Covenant.
From the beginning the work of the Temporary Mixed Commission and of the Permanent Advisory Commission revealed the infinite complexity of the question.
The Second Assembly limited its resolutions to the important, but none the less (if one may say so) secondary, questions of traffic in arms and their manufacture by private enterprise. It only touched upon the questions of military expenditure and budgets in the form of recommendations and, as regards the main question of reduction of armaments, it confined itself to asking the Temporary Mixed Commission to formulate a definite scheme.
It was between the Second and Third Assemblies that the latter Commission, which was beginning to get to grips with the various problems, revealed their constituent elements. In its report it placed on record that:
"The memory of the world war was still maintaining in many countries a feeling of insecurity, which was represented in the candid statements in which, at the request of the Assembly, several of them had put forward the requirements of their national security, and the geographical and political considerations which contributed to shape their policy in the matter of armaments."
At the same time, however, the Commission stated:
"Consideration of these statements as a whole has clearly revealed not only the sincere desire of the Governments to reduce national armaments and the corresponding {161} expenditure to a minimum, but also the importance of the results achieved. These facts"—according to the Commission—"are indisputable, and are confirmed moreover, by the replies received from Governments to the Recommendation of the Assembly regarding the limitation of military expenditure."
That is the point we had reached two years ago; there was a unanimous desire to reduce armaments. Reductions, though as yet inadequate, had been begun, and there was a still stronger desire to ensure the security of the world by a stable and permanent organisation for peace.
That was the position which, after long discussions, gave rise at the Third Assembly to the famous Resolution XIV and at the Fourth Assembly to the draft Treaty of Mutual Assistance, for which we are now substituting the Protocol submitted to the Fifth Assembly.
What progress has been made during these four years?
Although the Treaty of Mutual Assistance was approved in principle by eighteen Governments, it gave rise to certain misgivings. We need only recall the most important of these, hoping that a comparison between them and an analysis of the new scheme will demonstrate that the First and Third Committees have endeavoured, with a large measure of success, to dispose of the objections raised and that the present scheme consequently represents an immense advance on anything that has hitherto been done.
In the first place, a number of Governments or delegates to the Assembly argued that the guarantees provided by the draft Treaty of Mutual Assistance did not imply with sufficient definiteness the reduction of armaments which is the ultimate object of our work.
The idea of the Treaty was to give effect to Article 8 of the Covenant, but many persons considered that it did not, in fact, secure the automatic execution of that article. Even if a reduction of armaments was achieved by its means, the amount {162} of the reduction was left, so the opponents of the Treaty urged, to the estimation of each Government, and there was nothing to show that it would be considerable.
With equal force many States complained that no provision had been made for the development of the juridicial and moral elements of the Covenant by the side of material guarantees. The novel character of the charter given to the nations in 1919 lay essentially in the advent of a moral solidarity which foreshadowed the coming of a new era. That principle ought to have, as its natural consequence, the extension of arbitration and international jurisdiction, without which no human society can be solidly grounded. A considerable portion of the Assembly asked that efforts should also be made in this direction. The draft Treaty seemed from this point of view to be insufficient and ill-balanced.
Finally, the articles relating to partial treaties gave rise, as you are aware, to certain objections. Several Governments considered that they would lead to the establishment of groups of Powers animated by hostility towards other Powers or groups of Powers and that they would cause political tension. The absence of the barriers of compulsory arbitration and judicial intervention was evident here as everywhere else.
Thus, by a logical and gradual process, there was elaborated the system at which we have now arrived.
The reduction of armaments required by the Covenant and demanded by the general situation of the world to-day led us to consider the question of security as a necessary complement to disarmament.
The support demanded from different States by other States less favourably situated had placed the former under the obligation of asking for a sort of moral and legal guarantee that the States which have to be supported would act in perfect good faith and would always endeavor to settle their disputes by pacific means.
It became evident, however, with greater clearness and force {163} than ever before, that if the security and effective assistance demanded in the event of aggression was the condition sine qu non of the reduction of armaments, it was at the same time the necessary complement of the pacific settlement of international disputes, since the non-execution of a sentence obtained by pacific methods of settlement would necessarily drive the world back to the system of armed force. Sentences imperatively required sanctions or the whole system would fall to the ground.
Arbitration was therefore considered by the Fifth Assembly to be the necessary third factor, the complement of the two others with which it must be combined in order to build up the new system set forth in the Protocol.
Thus, after five years' hard work, we have decided to propose to the Members of the League the present system of arbitration, security and reduction of armaments—a system which we regard as being complete and sound.
That is the position with which the Fifth Assembly has to deal to-day. The desire to arrive at a successful issue is unanimous. A great number of the decisions adopted in the past years have met with general approval. There has arisen a thoroughly clear appreciation of the undoubted gaps which have to be filled and of the reasonable apprehensions which have to be dissipated. Conditions have therefore become favourable for arriving at an agreement.
An agreement has been arrived at on the basis of the draft Protocol which is now submitted to you for consideration.
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II
ANALYSIS OF THE SCHEME.
1.—WORK OF THE FIRST COMMITTEE.
(Rapporteur: M. Politis)
DRAFT PROTOCOL FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES.
Preamble.
The object of the Protocol, which is based upon the resolution of September 6th, 1924, is to facilitate the reduction and limitation of armaments provided for in Article 8 of the Covenant of the League of Nations by guaranteeing the security of States through the development of methods for the pacific settlement of all international disputes and the effective condemnation of aggressive war.
These general ideas are summarised in the preamble of the Protocol.
COMPULSORY ARBITRATION.
(Articles 1 to 6, 10, 16, 18 and 19 of the Protocol)
1.—INTRODUCTION.
Compulsory arbitration is the fundamental basis of the proposed system. It has seemed to be the only means of attaining the ultimate aim pursued by the League of Nations, viz. the establishment of a pacific and legal order in the relations between peoples.
The realisation of this great ideal, to which humanity aspires with a will which has never been more strongly affirmed, presupposes, as an indispensable condition, the elimination of war, the extension of the rule of law and the strengthening of the sentiment of justice.
The Covenant of the League of Nations erected a wall of protection around the peace of the world, but it was a first attempt {165} at international organisation and it did not succeed in closing the circle sufficiently thoroughly to leave no opening for war. It reduced the number of possible wars. It did not condemn them all. There were some which it was forced to tolerate. Consequently, there remained, in the system which it established, numerous fissures, which constituted a grave danger to peace.
The new system of the Protocol goes further. It closes the circle drawn by the Covenant; it prohibits all wars of aggression. Henceforth no purely private war between nations will be tolerated.
This result is obtained by strengthening the pacific methods of procedure laid down in the Covenant. The Protocol completes them and extends them to all international disputes without exception, by making arbitration compulsory.
In reality, the word "arbitration" is used here in a somewhat different sense from that which it has generally had up to now. It does not exactly correspond with the definition given by the Hague Conferences which, codifying a century-old custom, saw in it "the settlement of disputes between States by judges of their own choice and on the basis of respect for law" (Article 37 of the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes).
The arbitration which is now contemplated differs from this classic arbitration in various respects:
(a) It is only part of a great machinery of pacific settlement. It is set up under the auspices and direction of the Council of the League of Nations.
(b) It is not only an instrument for the administration of justice. It is, in addition and above all, an instrument of peace. The arbitrators must no doubt seek in the first place to apply the rules and principles of international law. This is the reason why, as will be seen below, they are bound to consult the Permanent Court of International Justice if one of the parties so requests. But if international law furnishes no rule or principle applicable to the particular {166} case, they cannot, like ordinary arbitrators, refuse to give a decision. They are bound to proceed on grounds of equity, for in our system arbitration is always of necessity to lead to a definitive solution of the dispute. This is not to be regretted, for to ensure the respect of law by nations it is necessary first that they should be assured of peace,
(c) It does not rest solely upon the loyalty and good faith of the parties. To the moral and legal force of an ordinary arbitration is added the actual force derived from the international organisation of which the kind of arbitration in question forms one of the principal elements; the absence of a sanction which has impeded the development of compulsory arbitration is done away with under our system.
In the system of the Protocol, the obligation to submit disputes to arbitration is sound and practical because it has always a sanction. Its application is automatically ensured, by means of the intervention of the Council; in no case can it be thrown on one side through the ill-will of one of the disputant States. The awards to which it leads are always accompanied by a sanction, adapted to the circumstances of the case and more or less severe according to the degree of resistance offered to the execution of the sentence.
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2.—NATURE OF THE RULES OP THE PROTOCOL.
Article 1.
The rules laid down in the Protocol do not all have the same scope or value for the future.
As soon as the Protocol comes into force, its provisions will become compulsory as between the signatory States, and in its dealings with them the Council of the League of Nations will at once be able to exercise all the rights and fulfil all the duties conferred upon it.
As between the States Members of the League of Nations, the Protocol may in the first instance create a dual rgime, for, if it is not immediately accepted by them all, the relations between signatories and non-signatories will still be governed by the Covenant alone while the relations between signatories will be governed by the Protocol as well.
But this situation cannot last. Apart from the fact that it may be hoped that all Members of the League will adhere to it, the Protocol is in no sense designed to create among the States which accept it a restricted League capable of competing with or opposing in any way the existing League. On the contrary, such of its provisions as relate to articles of the Covenant will, as soon as possible, be made part of the general law by amendment of the Covenant effected in accordance with the procedure for revision laid down in Article 26 thereof. The signatory States which are Members of the League of Nations undertake to make every effort to this end.
When the Covenant has been amended in this way, some parts of the Protocol will lose their value as between the said States: some of them will have enriched the Covenant, while others, being temporary in character, will have lost their object.
The whole Protocol will remain applicable to relations between signatory States which are Members of the League of Nations and signatory States outside the League, or between States coming within the latter category.
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It should be added that, as the League realises its aim of universality, the amended Covenant will take the place, as regards all States, of the separate rgime of the Protocol.
3.—CONDEMNATION OF AGGRESSIVE WAR.
Article 2.
The general principle of the Protocol is the prohibition of aggressive war.
Under the Covenant, while the old unlimited right of States to make war is restricted, it is not abolished. There are cases in which the exercise of this right is tolerated; some wars are prohibited and others are legitimate.
In future the position will be different. In no case is any State signatory of the Protocol entitled to undertake on its own sole initiative an offensive war against another signatory State or against any non-signatory State which accepts all the obligations assumed by the signatories under the Protocol.
The prohibition affects only aggressive war. It does not, of course, extend to defensive war. The right of legitimate self-defence continues, as it must, to be respected. The State attacked retains complete liberty to resist by all means in its power any acts of aggression of which it may be the victim. Without waiting for the assistance which it is entitled to receive from the international community, it may and should at once defend itself with its own force. Its interests are identified with the general interest. This is a point on which there can be no doubt.
The same applies when a country employs force with the consent of the Council or the Assembly of the League of Nations under the provisions of the Covenant and the Protocol. This eventuality may arise in two classes of cases: either a State may take part in the collective measures of force decided upon by the League of Nations in aid of one of its Members which is the victim of aggression; or a State may employ force with the authorisation of the Council or the Assembly in order to enforce {169} a decision given in its favour. In the former case, the assistance given to the victim of aggression is indirectly an act of legitimate self-defence. In the latter, force is used in the service of the general interest, which would be threatened if decisions reached by a pacific procedure could be violated with impunity. In all these cases the country resorting to war is not acting on its private initiative but is in a sense the agent and the organ of the community.
It is for this reason that we have not hesitated to speak of the exceptional authorisation of war. It has been proposed that the word "force" should be used in order to avoid any mention of "war"—in order to spare the public that disappointment which it might feel when it found that, notwithstanding the solemn condemnation of war, war was still authorised in exceptional cases. We preferred, however, to recognise the position frankly by retaining the expression "resort to war" which is used in the Covenant. If we said "force" instead of "war," we should not be altering the facts in any way. Moreover, the confession that war is still possible in specific cases has a certain value, because the term describes a definite and well-understood situation, whereas the expression "resort to force" would be liable to be misunderstood, and also because it emphasises the value of the sanctions at the disposal of the community of States bound by the Protocol.
4.—COMPULSORY JURISDICTION OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE.
Article 3.
The general principle of the Protocol could not be accepted unless the pacific settlement of all international disputes without distinction were made possible.
This solution has been found, in the first place, in the extension of the compulsory jurisdiction of the Permanent Court of International Justice.
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According to its Statute, the jurisdiction of the Court is, in principle, optional. On the other hand, Article 36, paragraph 2, of the Statute, offers States the opportunity of making the jurisdiction compulsory in respect of all or any of the classes of legal disputes affecting: (a) the interpretation of a Treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation. States have only to declare their intention through the special Protocol annexed to the Statute. The undertaking then holds good in respect of any other State which assumes the same obligation. It may be given either unconditionally or on condition of reciprocity on the part of several or certain other States; either permanently or for a fixed period.
So far such compulsory jurisdiction has only been accepted by a small number of countries. The majority of States have abstained because they did not see their way to accept compulsory jurisdiction by the Court in certain cases falling within one or another of the classes of dispute enumerated above, and because they were not sure whether, in accepting, they could make reservations to that effect.
It was for this reason that the Assembly in its resolution of September 6th, requested the First Committee to render more precise the terms of Article 36, paragraph 2, in order to facilitate its acceptance.
Careful consideration of the article has shown that it is sufficiently elastic to allow of all kinds of reservations. Since it is open to the States to accept compulsory jurisdiction by the Court in respect of certain of the classes of dispute mentioned and not to accept it in respect of the rest, it is also open to them only to accept it in respect of a portion of one of those classes; rights need not be exercised in their full extent. In giving the undertaking in question, therefore, States are free to declare that it {171} will not be regarded as operative in those cases in which they consider it to be inadmissible.
We can imagine possible and therefore legitimate, reservations either in connection with a certain class of dispute or, generally speaking, in regard to the precise stage at which the dispute may be laid before the Court. While we cannot here enumerate all the conceivable reservations, it may be worth while to mention merely as examples those to which we referred in the course of our discussions.
From the class of disputes relating to "the interpretation of a treaty" there may be excluded, for example, disputes as to the interpretation of certain specified classes of treaty such as political treaties, peace treaties, etc.
From the class of disputes relating to "any point of international law" there may be excluded, for example, disputes as to the application of a political treaty, a peace treaty, etc., or as to any specified question or disputes which might arise as the outcome of hostilities initiated by one of the signatory States in agreement with the Council or the Assembly of the League of Nations.
Again, there are many possible reservations as to the precise stage at which a dispute may be laid before the Court. The most far-reaching of these would be to make the resort to the Court in connection with every dispute in respect of which its compulsory jurisdiction is recognised contingent upon the establishment of an agreement for submission of the case which, failing agreement between the parties, would be drawn up by the Court itself, the analogy of the provisions of the Hague Convention of 1907 dealing with the Permanent Court of Arbitration being thus followed.
It might also be stated that the recognition of the compulsory jurisdiction of the Court does not prevent the parties to the dispute from agreeing to resort to a preliminary conciliation procedure before the Council of the League of Nations or any other {172} body selected by them, or to submit their disputes to arbitration in preference to going before the Court.
A State might also, while accepting compulsory jurisdiction by the Court, reserve the right of laying disputes before the Council of the League with a view to conciliation in accordance with paragraphs 1-3 of Article 15 of the Covenant, with the proviso that neither party might, during the proceedings before the Council, take proceedings against the other in the Court.
It will be seen, therefore, that there is a very wide range of reservations which may be made in connection with the undertaking referred to in Article 36, paragraph 2. It is possible that apprehensions may arise lest the right to make reservations should destroy the practical value of the undertaking. There seems, however, to be no justification for such misgivings. In the first place, it is to be hoped that every Government will confine its reservations to what is absolutely essential. Secondly, it must be recognised that, however restrictive the scope of the undertaking may be, it will always be better than no undertaking at all.
The fact that the signatory States undertake to accede, even though it be with reservations, to paragraph 2 of Article 36 may therefore be held to constitute a great advance.
Such accession must take place at latest within the month following upon the coming into force or subsequent acceptance of the Protocol.
It goes without saying that such accession in no way restricts the liberty which States possess, under the ordinary law, of concluding special agreements for arbitration. It is entirely open to any two countries signatory of the Protocol which have acceded to paragraph 2 of Article 36 to extend still further, as between themselves, the compulsory jurisdiction of the Court, or to stipulate that before having recourse to its jurisdiction they will submit their disputes to a special procedure of conciliation or even to stipulate, either before or after a dispute {173} has arisen, that it shall be brought before a special tribunal of arbitrators or before the Council of the League of Nations rather than to the Court.
It is also certain that up to the time of the coming into force or acceptance of the Protocol accession to paragraph 2 of Article 36 which will thenceforth become compulsory, will remain optional, and that if such accession has already taken place it will continue to be valid in accordance with the terms under which it was made.
The only point which may cause difficulty is the question what is the effect of accessions given to the Protocol if the latter becomes null and void. It may be asked whether such accessions are to be regarded as so intimately bound up with the Protocol that they must disappear with it. The reply must be in the negative. The sound rule of interpretation of international treaties is that, unless there is express provision to the contrary, effects already produced survive the act from which they sprang.
The natural corollary is that any State which wishes to make the duration of its accession to Article 36 dependent on the duration of the Protocol must make an express stipulation to this effect. As Article 36 permits acceptance of the engagement in question for a specified term only, a State may, when acceding, stipulate that it only undertakes to be bound during such time as the Protocol shall remain in force.
5.—STRENGTHENING OF PACIFIC METHODS OF PROCEDURE.
Article 4.
We have, in the second place, succeeded in making possible the pacific settlement of all disputes by strengthening the procedure laid down in the Covenant.
Article 4, paragraph 1.
Action by the Council with a view to reconciliation.—If a dispute does not come within the compulsory jurisdiction of the {174} Permanent Court of International Justice and if the Parties have been unable to come to an agreement to refer it to the Court or to submit it to arbitration, it should, under the terms of Article 15 of the Covenant, be submitted to the Council, which will endeavour to secure a settlement by reconciling the parties. If the Council's efforts are successful, it must, so far as it considers it advisable, make public a statement giving such facts and explanations regarding the dispute and the terms of settlement thereof as it may deem appropriate.
In this connection no change has been made in the procedure laid down by the Covenant. It appeared unnecessary to specify what particular procedure should be followed. The Council is given the utmost latitude in choosing the means most appropriate for the reconciliation of the parties. It may take advice in various quarters; it may hear expert opinions; it may proceed to investigations or expert enquiries, whether by itself or through the intermediary of experts chosen by it; it may even, upon application by one of the parties, constitute a special conciliation committee. The essential point is to secure, if possible, a friendly settlement of the dispute; the actual methods to be employed are of small importance. It is imperative that nothing should in any way hamper the Council's work in the interests of peace. It is for the Council to examine the question whether it would be expedient to draw up for its own use and bring to the notice of the Governments of the signatory States general regulations of procedure applicable to cases brought before it and designed to test the good-will of the parties with a view to persuading them more easily to reach a settlement under its auspices.
Experience alone can show whether it will be necessary to develop the rules laid down in the first three paragraphs of Article 15 of the Covenant.
For the moment it would appear to be expedient to make no addition and to have full confidence in the wisdom of the Council, it being understood that, whether at the moment in question or at any other stage of the procedure, it will be open to the {175} parties to come to an agreement for some different method of settlement: by way of direct understanding, constitution of a special committee of mediators or conciliators, appeal to arbitration or to the Permanent Court of International Justice.
The new procedure set up by the Protocol will be applicable only in the event of the Council's failing in its efforts at reconciliation and of the parties failing to come to an understanding in regard to the method of settlement to be adopted.
In such case, before going further, the Council must call upon the parties to submit their dispute to judicial settlement or to arbitration.
It is only in the case where this appeal—which the Council will make in the manner which appears to it most likely to secure a favourable hearing—is not listened to that the procedure will acquire the compulsory character which is necessary to make certain the final settlement of all disputes. There are three alternatives:
(a) Compulsory arbitration at the request of one of the parties;
(b) A unanimous decision by the Council;
(c) Compulsory arbitration enjoined by the Council.
Appropriate methods are laid down for all three cases.
Article 4, paragraph 2.
First case of Compulsory Arbitration.—If the parties, being called upon by the Council to submit their dispute to a judicial or arbitral settlement, do not succeed in coming to an agreement on the subject, there is no question of optional arbitration, but if a single party desires arbitration, arbitration immediately becomes compulsory.
The dispute is then ipso facto referred to a Committee of Arbitrators, which must be constituted within such time limit as the Council shall fix.
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Full liberty is left to the parties themselves to constitute this Committee of Arbitrators. They may agree between themselves in regard to the number, names and powers of the arbitrators and the procedure. It is to be understood that the word "powers" is to be taken in the widest sense, including, inter alia, the questions to be put.
It was not considered desirable to develop this idea further. It appeared to be sufficient to state that any result which could be obtained by means of an agreement between the parties was preferable to any other solution.
It also appeared inexpedient to define precisely the powers which should be conferred upon the arbitrators. This is a matter which depends upon the circumstances of each particular case. According to the case, the arbitrators, as is said above, may fill the rle of judges giving decisions of pure law or may have the function of arranging an amicable settlement with power to take account of considerations of equity.
It has not been thought necessary to lay this down in the form of a rule. It has appeared preferable to leave it in each case to the parties to agree between themselves to decide the matter according to the circumstances of the case.
Nevertheless, consideration has been given to the possibility that the arbitrators need not necessarily be jurists. It has therefore been decided that, when called upon to deal with points of law, they shall, if one of the parties so desires, request, through the medium of the Council, the advisory opinion of the Permanent Court of International Justice, which must, in such a case, meet with the utmost possible despatch. The opinion of the Court is obtained for the assistance of the arbitrators; it is not legally binding upon them, although its scientific authority must, in all cases, exercise a strong influence upon their judgment. With a view to preventing abusively frequent consultations of this kind, it is understood that the opinion of the Court in regard to disputed points of law can only be asked on a single occasion in the course of each case.
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The extension which, in the new system of pacific settlement of disputes, has been given to the advisory procedure of the Court has suggested the idea that it might be desirable to examine whether, even in such cases, it might not be well to adopt the system of adding national judges which at present only obtains in litigious proceedings, and also that of applying to the advisory procedure the provisions of Article 24 of the Statute of the Court relating to withdrawal of judges.
If the parties have not been able to come to an understanding on all or on some of the points necessary to enable the arbitration to be carried out, it lies with the Council to settle the unsettled points, with the exception of the formulation of the questions to be answered, which the arbitrators must seek in the claims set out by the parties or by one of them if the others make default.
In cases where the selection of arbitrators thus falls upon the Council, it has appeared necessary—however much confidence may be felt in the Council's wisdom—to lay down for the selection of the arbitrators certain rules calculated to give the arbitration the necessary moral authority to ensure that it will in practice be respected.
The first rule is that the Council shall, before proceeding to the selection of arbitrators, have regard to the wishes of the parties. It was suggested that this idea should be developed by conferring on the parties the right to indicate their preferences and to challenge a certain number of the arbitrators proposed by the Council.
This proposal was set aside on account of the difficulty of laying down detailed regulations for the exercise of this double right. But it is understood that the Council will have no motive for failing to accept candidates proposed to it by the different parties nor for imposing upon them arbitrators whom they might wish to reject, nor, finally, for failing to take into account any other suggestion which the parties might wish to make. It is indeed evident that the Council will always be desirous of acting {178} in the manner best calculated to increase to the utmost degree the confidence which the Committee of Arbitrators should inspire in the parties.
The second rule is based on the same point of view. It lays down the right of the Council to select the arbitrators and their president from among persons who, by their nationality, their personal character and their experience, appear to furnish the highest guarantees of competence and impartiality.
Here, too, experience will show whether it would be well for the Council to draw up general regulations for the composition and functioning of the compulsory arbitration now in question and of that above referred to, and for the conciliation procedure in the Council itself. Such regulations would be made for the Council's own use but would be communicated to the Governments of the signatory States.
Article 4, paragraph 3.
Unanimous decision by the Council.—If arbitration is refused by both parties the case will be referred back to the Council, but this time it will acquire a special character. Refusal of arbitration implies the consent of both parties to a final settlement of the dispute by the Council. It implies recognition of an exceptional jurisdiction of the Council. It denotes that the parties prefer the Council's decision to an arbitral award.
Resuming the examination of the question, the Council has not only the latitude which it customarily possesses. It is armed with full powers to settle the question finally and irrevocably if it is unanimous. Its decision, given unanimously by all the members other than those representing parties to the dispute, is imposed upon the parties with the same weight and the same force as the arbitration award which it replaces.
Article 4, paragraph 4.
Second case of Compulsory Arbitration.—If the Council does not arrive at a unanimous decision, it has to submit the dispute {179} to the judgment of a Committee of Arbitrators, but this time, owing to the parties being deemed to have handed their case over to the Council, the organisation of the arbitration procedure is taken entirely out of their hands. It will be for the Council to settle all the details, the composition, the powers and the procedure of the Committee of Arbitrators. The Council is of course at liberty to hear the parties and even to invite suggestions from them, but it is under no obligation to do so. The only regulation with which it must comply is that, in the choice of arbitrators, it must bear in mind the guarantees of competence and impartiality which, by their nationality, their personal character and their experience, these arbitrators must always furnish.
Article 4. paragraph 6.
Effect of, and Sanction enforcing, Decisions.—Failing a friendly arrangement, we are, thanks to the system adopted, in all cases certain of arriving at a final solution of a dispute, whether in the form of a decree of the Permanent Court of International Justice or in the form of an arbitral award or, lastly, in the form of a unanimous decision of the Council.
To this solution the parties are compelled to submit. They must put it into execution or comply with it in good faith.
If they do not do so, they are breaking an engagement entered into towards the other signatories of the Protocol, and this breach involves consequences and sanctions according to the degree of gravity of the case.
If the recalcitrant party confines itself to offering passive resistance to the solution arrived at, it will first be the object of pacific pressure from the Council, which must exercise all its influence to persuade it to respect its engagements. If the Council is unsuccessful, it must propose measures calculated to ensure effect being given to the decision.
On this point the Protocol has been guided solely by the regulation contained at the end of Article 13 of the Covenant. The {180} Council may thus institute against the recalcitrant party collective sanctions of an economic and financial order. It is to be supposed that such sanctions will prove sufficient. It has not appeared possible to go further and to employ force against a State which is not itself resorting to force. The party in favour of which the decision has been given might, however, employ force against the recalcitrant party if authorised to do so by the Council.
But if the State against which the decision has been given takes up arms in resistance thereto, thereby becoming an aggressor against the combined signatories, it deserves even the severe sanctions provided in Article 16 of the Covenant, interpreted in the manner indicated in the present Protocol.
Sphere of Application of Methods of Pacific Procedure.—Necessary as the system which we have laid down is for the purpose of ensuring settlement of all disputes, in applying it, the pacific aim which underlies it must be the only guide. It must not be diverted to other purposes and used as an occasion for chicanery and tendencious proceedings by which the cause of peace would lose rather than gain.
A few exceptions to the rule have also had to be made in order to preserve the elasticity of the system. These are cases in which the claimant must be nonsuited, the claim being one which has to be rejected in limine by the Council, the Permanent Court of International Justice or the arbitrators, as the case may be.
The disputes to which the system will not apply are of three kinds:
Article 4, paragraph 5.
1. The first concerns disputes relating to questions which, at some time prior to the entry into force of the Protocol have been the subject of a unanimous recommendation by the Council accepted by one of the parties concerned. It is essential to {181} international order and to the prestige of the Council that its unanimous recommendations, which confer a right upon the State accepting them, shall not be called into question again by means of a procedure based upon compulsory arbitration. Failing a friendly arrangement, the only way which lies open for the settlement of disputes to which these recommendations may give rise is recourse to the Council in accordance with the procedure at present laid down in the Covenant.
Article 4, paragraph 7.
2. The same applies to disputes which arise as the result of measures of war taken by one or more signatory States in agreement with the Council or the Assembly of the League of Nations. It would certainly not be admissible that compulsory arbitration should become a weapon in the hands of an enemy to the community to be used against the freedom of action of those who, in the general interest, seek to impose upon that enemy respect for his engagements.
In order to avoid all difficulty of interpretation, these first two classes of exceptions have been formally stated in the Protocol.
3. There is a third class of disputes to which the new system of pacific settlement can also not be applied. These are disputes which aim at revising treaties and international acts in force, or which seek to jeopardise the existing territorial integrity of signatory States. The proposal was made to include these exceptions in the Protocol, but the two Committees were unanimous in considering that, both from the legal and from the political point of view, the impossibility of applying compulsory arbitration to such cases was so obvious that it was quite superfluous to make them the subject of a special provision. It was thought sufficient to mention them in this report.
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6.—ROLE OF THE ASSEMBLY UNDER THE SYSTEM SET UP BY THE PROTOCOL.
Article 6.
The new procedure should be adapted to the old one, which gave the Assembly the same powers as the Council when a dispute is brought before it, either by the Council itself or at the request of one of the parties.
The question has arisen whether the system of maintaining in the new procedure this equality of powers between the two organs of the League of Nations is a practical one. Some were of opinion that it would be better to exclude intervention by the Assembly. Finally, however, the opposite opinion prevailed; an appeal to the Assembly may, indeed, have an important influence from the point of view of public opinion. Without going so far as to assign to the Assembly the same rle as to the Council, it has been decided to adopt a mixed system by which the Assembly is, in principle, substituted for the Council in order that, when a dispute is referred to it in conformity with paragraph 9 of Article 15 of the Covenant, it may undertake, in the place of the Council, the various duties provided for in Article 4 of the present Protocol with the exception of purely executive acts which will always devolve upon the Council. For example, the organisation and management of compulsory arbitration, or the transmission of a question to the Permanent Court of International Justice, must always be entrusted to the Council, because, in practice, the latter is the only body qualified for such purposes.
The possible intervention of the Assembly does not affect in any way the final result of the new procedure. If the Assembly does not succeed in conciliating the parties and if one of them so requests, compulsory arbitration will be arranged by the Council in accordance with the rules laid down beforehand.
If none of the parties asks for arbitration, the matter is referred back to the Assembly, and if the solution recommended {183} by the Assembly obtains the majority required under paragraph 10 of Article 15 of the Covenant, it has the same value as a unanimous decision of the Council.
Lastly, if the necessary majority is not obtained, the dispute is submitted to a compulsory arbitration organised by the Council.
In any event, as in the case where the Council alone intervenes, a definitive and binding solution of the dispute is reached.
7.—DOMESTIC JURISDICTION OF STATES.
Article 5.
The present Protocol in no way derogates from the rule of Article 15, paragraph 8, of the Covenant, which protects national sovereignty.
In order that there might be no doubt on this point, it appeared advisable to say so expressly.
Before the Council, whatever be the stage in the procedure set up by the Protocol at which the Council intervenes, the provision referred to applies without any modification.
The rule is applied also to both cases of compulsory arbitration. If one of the States parties to the dispute claims that the dispute or part thereof arises out of a matter which by international law is solely within its jurisdiction, the arbitrators must on this point take the advice of the Permanent Court of International Justice through the medium of the Council, for the question thus put in issue is a legal question upon which a judicial opinion should be obtained.
The Court will thus have to give a decision as to whether the question in dispute is governed by international law or whether it falls within the domestic jurisdiction of the State concerned. Its functions will be limited to this point and the question will in any event be referred back to the arbitrators. But, unlike other opinions requested of the Court in the course of a compulsory arbitration—opinions which for the arbitrators are purely {184} advisory—in the present case the opinion of the Court is compulsory in the sense that, if the Court has recognised that the question in dispute falls entirely within the domestic jurisdiction of the State concerned, the arbitrators will simply have to register this conclusion in their award. It is only if the Court holds that the question in dispute is governed by international law that the arbitrators will again take the case under consideration in order to give a decision upon its substance.
The compulsory character of the Court's opinion, in this case, increases the importance of the double question referred to above, in connection with Article 4, relating to the calling-in of national judges, and the application of Article 24 of the Statute of the Court in matters of advisory procedure.
While the principle of Article 15, paragraph 8, of the Covenant is maintained, it has been necessary, in order to make its application more flexible, to call in aid the rule contained in Article 11 of the Covenant, which makes it the duty of the League of Nations, in the event of war or a threat of war, to "take any action that may be deemed wise and effective to safeguard the peace of nations," and obliges the Secretary-General to summon forthwith a meeting of the Council on the request of any Member of the League. It is in this way understood that when it has been recognised that a dispute arises out of a matter which is solely within the domestic jurisdiction of one of the parties, that party or its opponent will be fully entitled to call upon the Council or the Assembly to act.
There is nothing new in this simple reference to Article 11. It leaves unimpaired the right of the Council to take such action as it may deem wise and effectual to safeguard the peace of nations. It does not confer new powers of functions on either the Council or the Assembly. Both these organs of the League simply retain the powers now conferred upon them by the Covenant.
In order to dispel any doubt which may arise from the {185} parallel which has been drawn between Article 15, paragraph 8, and Article 11 of the Covenant, a very clear explanation was given in the course of the discussion in the First Committee. Where a dispute is submitted to the Council under Article 15 and it is claimed by one party that the dispute arises out of a matter left exclusively within its domestic jurisdiction by international law, paragraph 8 prevents the Council from making any recommendations upon the subject if it holds that the contention raised by the party is correct and that the dispute does in fact arise out of a matter exclusively within that State's jurisdiction.
The effect of this paragraph is that the Council cannot make any recommendation in the technical sense in which that term is used in Article 15, that is to say, it cannot make, even by unanimous report, recommendations which become binding on the parties in virtue of paragraph G.
Unanimity for the purpose of Article 15 implies a report concurred in by all the members of the Council other than the parties to the dispute. Only a report so concurred in is one which the parties to the dispute are bound to observe, in the sense that, if they resort to war with any party which complies with the recommendations, it will constitute a breach of Article 16 of the Covenant and will set in play the sanctions which are there referred to.
On the other hand, Article 11 is of different scope: first, it operates only in time of war or threat of war; secondly, it confers no right on the Council or on the Assembly to impose any solution of a dispute without the consent of the parties. Action taken by the Council or the Assembly under this article cannot become binding on the parties to the dispute in the sense in which recommendations under Article 15 become binding, unless they have themselves concurred in it.
One last point should be made clear. The reference which is made to Article 11 of the Covenant holds good only in the eventuality contemplated in Article 15, paragraph 8, of the Covenant. It is obvious that when a unanimous decision of the {186} Council or an arbitral award has been given upon the substance of a dispute, that dispute is finally settled and cannot again be brought either directly or indirectly under discussion. Article 11 of the Covenant does not deal with situations which are covered by rules of law capable of application by a judge. It applies only to cases which are not yet regulated by international law. In fact, it demonstrates the existence of loop-holes in the law.
The reference to Article 11 in two of the articles of the Protocol (Articles 5 and 10) has advantages beyond those to which attention is drawn in the commentary on the text of those articles. It will be an incitement to science to clear the ground for the work which the League of Nations will one day have to undertake with a view to bringing about, through the development of the rules of international law, a closer reconciliation between the individual interests of its Members and the universal interests which it is designed to serve.
8.—DETERMINATION OF THE AGGRESSOR.
Article 10.
In order that the procedure of pacific settlement may be accompanied by the necessary sanctions, it has been necessary to provide for determining exactly the State guilty of aggression to which sanctions are to be applied.
This question is a very complex one, and in the earlier work of the League the military experts and jurists who had had to deal with it found it extremely difficult.
There are two aspects to the problem: first, aggression has to be defined, and, secondly, its existence has to be ascertained.
The definition of aggression is a relatively easy matter, for it is sufficient to say that any State is the aggressor which resorts in any shape or form to force in violation of the engagements contracted by it either under the Covenant (if, for instance, being a Member of the League of Nations, it has not respected the territorial integrity or political independence of another Member {187} of the League) or under the present Protocol (if, for instance, being a signatory of the Protocol, it has refused to conform to an arbitral award or to a unanimous decision of the Council). This is the effect of Article 10, which also adds that the violation of the rules laid down for a demilitarised zone is to be regarded as equivalent to resort to war. The text refers to resort to war, but it was understood during the discussion that, while mention was made of the most serious and striking instance, it was in accordance with the spirit of the Protocol that acts of violence and force, which possibly may not constitute an actual state of war, should nevertheless be taken into consideration by the Council. |
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